Respondents Brief — Union Pacific Railroad Company, Petitioner v. Brotherhood of Locomotive Engineers and Trainmen
Supreme Court briefNov 10, 2022
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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 Writ of Certiorari to the United States
Court of Appeals for the Fifth Circuit
BRIEF IN OPPOSITION
James R. Tanner
Counsel of Record
Tanner and Associates, PC
6300 Ridglea Place,
Suite 407
Fort Worth, TX 76116
(817) 377-8833
rtanner@rodtannerlaw.com
Joshua D. McInerney
James Petroff
Wentz, McInerney, Peifer
& Petroff, LLC
14 E. Gay Street, FL 4
Columbus, Ohio 43215
(614) 756-5566
jmcinerney@lawforlabor.com
jpetroff@lawforlabor.com
Mosaic - (301) 927-3800 - Cheverly, MD
49261_Ltrhd.indd
1
6/11/08
12:44:0
i
TABLE OF CONTENTS
Page
INTRODUCTION................................................
1
STATEMENT.......................................................
2
ARGUMENT........................................................
9
I. The Courts of Appeals’ Uniform
Recognition that Sections 2, Third and
Fourth are Enforceable in Federal Court
Against Claims of Interference Motivated
by Antiunion Animus Effectuates the
Statutory Design and Adheres to the
Decisions of this Court...............................
9
A. As Union Pacific Concedes, Every
Court of Appeals that has Addressed
the Question has Found that Federal
Courts have Jurisdiction Over
Section 2, Third and Fourth Claims
Alleging Interference Motivated by
Antiunion Animus.................................
11
B. This Court has Held that Judicial
Enforcement of Sections 2, Third and
Fourth is Essential to the RLA’s
Statutory Design, and that Need for
Judicial Enforcement Exists
Throughout the Collective
Bargaining Relationship.......................
12
C. This Court Has Clarified that only
Contractual—and not Statutory—
Disputes are Subject to Arbitration
under the RLA.......................................
15
ii
TABLE OF CONTENTS—Continued
Page
D. The Courts of Appeals’ Recognition of
Section 2, Third and Fourth Claims of
Interference Motivated by Antiunion
Animus Flows Directly from this
Court’s Decisions Regarding the
RLA’s Design and the Reach of the
Statute’s Arbitration Provisions...........
20
II. The Court of Appeals Decision Does Not
Allow Unions to Escape Arbitration of
Disciplinary Matters By Simply Alleging
Antiunion Animus......................................
24
III. Section 2, Third Prohibits Interference
with the Parties’ Designated
“Representative,” and there is no Circuit
Split Over Which “Representative”
That Is.........................................................
25
CONCLUSION.....................................................
31
iii
TABLE OF AUTHORITIES
Cases
Page
Air Line Pilots Ass’n, Int’l v. United Air Lines, Inc.,
802 F.2d 886 (7th Cir. 1986)............................
11
Andrews v. Louisville & Nashville R.R. Co.,
406 U.S. 320 (1972)..........................................
18
Ass’n of Flight Attendants v. Horizon Air
Industries, Inc.,
280 F.3d 901 (9th Cir. 2002)............................
23
Atchison, Topeka and Santa Fe Ry. Co. v. Buell,
480 U.S. 557 (1987)..........................................
16
Bhd. of Locomotive Eng’rs & Trainmen v.
Union Pac. R.R. Co.,
21-50544 (5th Cir. April 13, 2022)..................
10
Bhd. of Locomotive Eng’rs & Trainmen v.
Union Pac. R.R. Co.,
No. 21-cv-122 (W.D. Tex. June 17, 2021)........
2
Bhd. of Locomotive Eng’rs v. Kansas City
Southern Ry. Co.,
26 F.3d 787 (8th Cir. 1994)..............................
23
Bhd. of Locomotive Eng’rs v. Louisville &
Nashville R.R. Co.,
373 U.S. 33 (1963)............................................
16
Bhd. of R.R. Trainmen v. Cent. of Georgia
Ry. Co.,
305 F.2d 605 (5th Cir. 1962)................... 6, 8, 11, 21
Bhd. of R.R. Trainmen v. Howard,
343 U.S. 768 (1952).......................................... 16, 17
iv
TABLE OF AUTHORITIES—Continued
Page
Bhd. of R.R. Trainmen v. Jacksonville
Terminal Co.,
394 U.S. 369 (1969)..........................................
16
Bhd. of R.R. Trainmen v. Smith,
251 F.2d 282 (6th Cir. 1958)............................
21
Bhd. of Ry. Carmen v. Atchison, Topeka &
Santa Fe Ry.,
894 F.2d 1463 (5th Cir. 1990)..........................
6
Conrad v. Delta Airlines, Inc.,
494 F.2d 914 (7th Cir. 1974)............................
22
Consolidated Rail Corp. v. Ry. Lab.
Executives’ Ass’n,
491 U.S. 305 (1989).............................. 8, 15, 16, 24
Davies v. Am. Airlines, Inc.,
971 F.2d 463 (10th Cir. 1992).......................... 11, 22
Elgin, J. & E. Ry. Co. v. Burley,
325 U.S. 711 (1945)..........................................
12
Fennessy v. Southwest Airlines,
91 F.3d 1359 (9th Cir. 1996)............................ 11, 22
Gen. Comm. of Adjustment v. Mo.-Kan.-Tex.
R.R. Co.,
320 U.S. 323 (1943)............................ 12, 13, 14, 28
Hawaiian Airlines, Inc. v. Norris,
512 U.S. 246 (1994)............................ 15, 16, 17, 18
Indep. Union of Flight Attendants v. Pan Am.
World Airways, Inc.,
789 F.2d 139 (2d Cir. 1986).............................
11
v
TABLE OF AUTHORITIES—Continued
Page
Int’l Bhd. of Teamsters v. United Parcel
Serv. Co.,
447 F.3d 491 (6th Cir. 2006)..................... 23, 26, 29
Int’l Ass’n of Machinists v. Street,
367 U.S. 740 ....................................................
14
Lingle v. Norge Div. of Magic Chef, Inc.,
486 U.S. 399 (1988)..........................................
17
Mo. Pac. R. Co. v. Norwood,
283 U.S. 249 (1931)..........................................
17
Penn. R.R. Co. v. U.S. R.R. Labor Board,
261 U.S. 72 (1923)............................................
12
Penn. R.R. Sys. & Allied Lines Fed’n No. 90 v.
Penn. R.R. Co.,
267 U.S. 203 (1925)..........................................
13
Russell v. NMB,
714 F.2d 1332 (5th Cir. 1983)..........................
29
Ry. Lab. Executives’ Ass’n v. Boston & Maine
Corp.,
808 F.2d 150 (1st Cir. 1986)............................ 11, 22
Steele v. Louisville & N.R. Co.,
323 U.S. 192 (1944).......................................... 14, 28
Stewart v. Spirit Airlines, Inc.,
503 Fed. Appx. 814 (11th Cir. 2013)...............
11
Switchmen’s Union v. NMB,
320 U.S. 297 (1943)..........................................
19
Tello v. Soo Line R.R Co.,
772 F.2d 458 (8th Cir. 1985)............................
11
vi
TABLE OF AUTHORITIES—Continued
Page
Terminal R. Ass’n of St. Louis v. Bhd. of R.R.
Trainmen,
318 U.S. 1 (1943)..............................................
17
Tex. & N. O. R. Co. v. Bhd. of Ry. & Steamship
Clerks,
281 U.S. 548 (1930).............................. 7, 12, 13, 15
Texas Int’l Airlines, Inc. v. Ass’n of Flight
Attendants,
498 F. Supp. 437 (S.D. Tex. 1980)...................
23
Texas Int’l v. Ass’n of Flight Attendants,
667 F.2d 1169 (5th Cir. 1982)..........................
23
Trans World Airlines, Inc. v. Indep. Fed’n of
Flight Attendants,
489 U.S. 426 (1989).................................... 8, 19, 23
Union Pac. R.R. Co. v. Price,
360 U.S. 601 (1959)..........................................
12
United Steelworkers of Am. v. Warrior &
Gulf Nav. Co.,
363 U.S. 574 (1960)..........................................
28
United Transp. Union v. Nat’l Railroad
Passenger Corp.,
588 F.3d 805 (2d Cir. 2009)............................. 26, 30
Virginian Ry. Co. v. Sys.
Fed’n No. 40, 300 U.S. 515 (1937)........ 7, 14, 20, 24
vii
TABLE OF AUTHORITIES—Continued
Statutes
29 U.S.C. § 185.....................................................
Page
17
45 U.S.C. § 151..................................................... 27, 29
45 U.S.C. § 151a................................................... 6, 15
45 U.S.C. § 152................................................. passim
45 U.S.C. § 153.....................................................
6
Miscellaneous
doUglas W. hall and maRcUs mIglIoRe, eds.,
The RaIlway LaBoR Act (BNA 2021)..............
18
1
INTRODUCTION
According to the district court’s unchallenged factual findings, Petitioner Union Pacific used the pretext of an off-site and off-duty fistfight at a union
membership meeting to eradicate the union’s presence at its El Paso terminals. The fight—between a
union officer and a rank-and-file member—was the
result of an internal union dispute over the latter’s acceptance of extra shifts with Union Pacific, which the
union actively discourages because it creates a safety
risk. Instead of disciplining both combatants in accordance with its past practice, Union Pacific suspended only the union officer for fighting. It then also
suspended five other active El Paso union officers—
who were merely bystanders to the fight—while allowing a rank-and-file bystander who supported the
carrier’s position on extra shifts to continue to work.
In the end, El Paso union members were left with no
union representation at their workplace.
Sections 2, Third and Fourth of the Railway Labor
Act (“RLA” or “Act”), 45 U.S.C. §§ 152, Third and
Fourth, prohibit this type of intentional interference
with union members’ chosen representative, and, for
almost one hundred years, this Court has allowed
unions to enforce that prohibition in federal court. Petitioner concedes that each court of appeals presented
with the issue has held that unions may access federal
court to enforce Sections 2, Third and Fourth in those
exceptional circumstance where an employer acts to
deprive employees of union representation and is motivated by antiunion animus. This case sits so squarely within settled precedent that not one Fifth Circuit
judge requested a vote regarding rehearing en banc.
In petitioning for certiorari, Union Pacific—for the
first time—posits a split among circuits that simply is
2
not there, and asks this Court to wipe away decades of
precedent that all flow in the same direction as the
decision below. There is no warrant to grant that request. The petition should be denied.
STATEMENT
1. Petitioner Union Pacific Railroad Company
(“Union Pacific” or “Carrier”) is a national rail carrier
with operations throughout the western United
States. Pet.App. 2a. The Brotherhood of Locomotive
Engineers and Trainmen (“BLET” or “Union”) is a labor union that represents over 5,000 Union Pacific engineers. Pet.App. 2a. The Union is made up of a number of local units or “divisions.” Ibid. Each division
provides representation to Union members in its geographic area. Elected representatives from each division also serve on general committees, which together
negotiate collective bargaining agreements (“CBAs”)
with carriers like Union Pacific. Ibid. BLET’s Division 192 is the exclusive bargaining representative for
about 150 engineers working at the Carrier’s El Pasoarea rail yard operations. Ibid. Division 192’s officers
perform the Union’s day-to-day representation within
the Division’s geographic jurisdiction; their duties include ensuring that Union Pacific is abiding by the
collective bargaining agreement and filing grievances—or “time claims”—where it does not, reviewing
rules and policies, representing Union members at
disciplinary meetings, ensuring that Union Pacific upholds its duties to provide a safe working environment, and educating members about their rights under the CBA. Decl. of Peter Shepard ¶ 5, Bhd. of
Locomotive Eng’rs & Trainmen v. Union Pac. R.R. Co.,
No. 21-cv-122 (W.D. Tex. June 17, 2021) (“BLET”)
Dkt. 3-2; Hearing on Motion for Temporary and Preliminary Injunctive Relief at 22, 34, BLET, Dkt. 39
3
(“Hearing Transcript”). The Union officers must be
on-site to perform their Union duties. Pet.App. 4a-5a.
2. This case began when BLET filed suit in federal
district court after the Carrier suspended all active
Division 192 officers, effectively eliminating all Division 192 representation from the Carrier’s El Paso
rail yards. The suspensions were ostensibly over an
off-duty, off-site, and two-month-old event in which
rank-and-file BLET member David Cisneros attacked
the Division’s Vice Local Chairman Joe Reyes in a
restaurant parking lot just prior to a Union membership meeting. Cisneros was upset that Reyes had
sent him confrontational messages over his acceptance of “shoves” offered by the Carrier. Pet.App.2a3a. Engineers who take shoves voluntarily agree to
extra shifts outside their regular assignment—thereby “shoving” off their regular assignment—when the
Carrier does not have an available engineer to fill the
shifts. Hearing Transcript at 52-53. When an engineer accepts a shove, that engineer is removed from
the regularly rotating pool of engineers, and so the
remaining engineers—who are on call 24/7—are
called back to work earlier than they would be otherwise. Hearing Transcript at 53-54. The Union considers this a safety risk, and actively discourages its
members from accepting shoves. Pet.App. 2a; Decl. of
Jose Reyes, Jr. ¶ 6, BLET, Dkt. 3-2.
Nearly two months after the attack, Cisneros filed a
complaint with the Carrier that alleged that Division
192’s Local Chairman Peter Shepard and Reyes had
threatened and physically assaulted him in retaliation for taking shoves. Pet.App. 3a. The Carrier engaged in a truncated investigation, interviewing only
Cisneros and taking statements from just two other
Union members. Ibid. One of those members, Jason
4
Barnett, witnessed only part of the fight, while the
other, Mark Fraire, was not present at the fight but
alleged that he had suffered similar harassment by
Reyes for taking shoves. Ibid. The Carrier did not
interview or take statements from any of the Union
officers. Pet.App. 4a.
Following this limited investigation, the Carrier indefinitely suspended without pay Shepard, Reyes, and
the three other active Union officers, and told them
they would be subjected to disciplinary proceedings
that could result in termination.1 Pet.App. 4a. The
three other Union officers and the additional suspended member were not named in Cisneros’s report, and
were merely bystanders. Ibid.
The Carrier charged Shepard and Reyes with violating a policy prohibiting violence and abusive behavior
in the workplace, and another policy prohibiting discourteous, immoral, or quarrelsome behavior. Ibid.
The bystander Union officers were charged with failing to take any action to stop the off-site and off-duty
fight or report it to management. Ibid. The Union officers were issued Notices of Investigation that explicitly linked their discipline to the Union’s attempt to
discourage the taking of shoves. See Complaint ¶ 16,
BLET, Dkt. 1 (“The alleged physical attack appeared
to further be in retaliation for this employee’s decision
to accept certain types of service permitted under the
collective bargaining agreement. . . . These actions undermine the Carrier’s ability to maintain a harassment-free workplace and to manage its working forces
as permitted by the collective bargaining agreement
and applicable law.”) (“Complaint”).
The Carrier suspended one other union member who it
treated like the Union officers. Pet.App. 4a.
1
5
Cisneros was not suspended, even though the Carrier’s conceded practice had been to discipline all participants in an altercation. Pet.App. 4a. Barnett was
also not disciplined, even though he too witnessed the
fistfight and failed to report it to management. Ibid.
Hence, the employees who supported the Carrier’s position on shoves were spared any discipline while the
Union officers who did not were suspended indefinitely without pay.
The suspension of all active union officers left Division 192 members with no Union representation on
Carrier premises.2 Ibid. This is so because the officers could not perform their duties remotely. Pet.App.
4a-5a. Accordingly, there were no Union officers available to represent members in disciplinary hearings, or
investigate potential contractual violations in-person,
let alone oppose the Carrier’s shoving practices.
3. Within days of the suspension, the Union filed
suit to enjoin the suspensions and order the return of
the Union officers to work. The Union alleged that
the Carrier retaliated against the Union for discouraging shoves by removing the Union officers, in violation of Sections 2, Third and Fourth of the Railway
Labor Act (RLA), 45 U.S.C. §§ 152, Third and Fourth.
Pet.App. 5a; Complaint at Count I and Count 2. The
RLA’s Section 2, Third protects the right of a carrier
and its employees to designate “[r]epresentatives . . .
without interference, influence, or coercion exercised
by either party over the self-organization or designation of representatives by the other.” 45 U.S.C. § 152,
Third. Section 2, Fourth further provides that
“[e]mployees shall have the right to organize and bar-
The one remaining union officer was on long-term medical
leave at the time. Pet.App. 4a.
2
6
gain collectively through representatives of their own
choosing,” and that it shall be “unlawful for any carrier to interfere in any way with the organization of
its employees . . . or to influence or coerce employees
in an effort to induce them to join or remain or not to
join or remain members of any labor organization.”
45 U.S.C. § 152, Fourth. To support its claims, the
Union specifically alleged facts that demonstrated
the Carrier’s conduct was motivated by antiunion animus, including the selective and disparate discipline
applied to the Union officers as opposed to the rankand-file members who supported the Carrier’s position on shoves. Complaint ¶¶ 2, 22, 23, 26, 28, 42, 46.
In issuing its preliminary injunction, the district
court acknowledged that disputes over discipline generally are so-called “minor disputes” under the RLA,
which are subject to compulsory arbitration and outside federal court jurisdiction. Pet.App. 29a; see 45
U.S.C. §§ 151a, 152, Sixth, and 153. However, the court
recognized that certain exceptional circumstances involving conduct by a carrier intending to weaken or destroy a union can give rise to federal court jurisdiction.
Pet.App. 30a, citing Bhd. of Ry. Carmen v. Atchison,
Topeka & Santa Fe Ry., 894 F.2d 1463, 1468 n. 10 (5th
Cir. 1990), cert. denied, 498 U.S. 846 (1990) (citing Bhd.
of R.R. Trainmen v. Cent. of Georgia Ry. Co., 305 F.2d
605, 608 (5th Cir. 1962) (“Central of Georgia”)).
Following an evidentiary hearing, the district court
held that the Union was likely to succeed on its claims.
The court found “substantial evidence that [the Carrier] is trying to weaken the union, thus creating the exceptional circumstance that warrants the [c]ourt’s jurisdiction.” Pet.App. 31a. The district court pointed to
the fact that the Carrier selectively suspended Shepard
and Reyes for their involvement in the fight, but not
7
Cisneros, which was contrary to the Carrier’s practice
of suspending all participants in a fight. Ibid. It further noted that the Carrier disciplined three additional
Union officers who were merely bystanders to the fight.
Ibid. These facts led the district court “to the conclusion that, in disciplining the union members, [the Carrier] was motivated by a desire to weaken the local division and used the fight as pretext for its actions.” Ibid.;
see also Pet.App. 33a (“The [c]ourt finds that [the
Carrier] has used disciplinary proceedings concerning
the fight as a pretext for undermining BLET.”).
Because of this, the district court found substantial
and irreparable injury to employees’ rights—pursuant to Sections 2, Third and Fourth—to engage in organizing and union activity without interference, influence, or coercion. Pet.App. 19a. The five Union
officers were returned to work following issuance of
the preliminary injunction.
The Carrier appealed, and the court of appeals
found no abuse of discretion in the district court’s
grant of injunctive relief. The court of appeals agreed
that federal courts have jurisdiction over cases presenting the type of extraordinary circumstances evident here; that is, where carrier “conduct motivated
by antiunion animus is interfering with the employees’ ‘choice of representative.’ ” Pet.App. 14a, quoting
45 U.S.C. § 152, Third. The court of appeals explained
that Section 2, Third “and similar provisions of the
RLA are judicially enforceable because noninterference with employees’ chosen representative is a statutory right crucial to the [RLA]’s functioning.” Pet.
App. 7a-8a, citing Tex. & N. O. R. Co. v. Bhd. of Ry. &
Steamship Clerks, 281 U.S. 548, 569 (1930) (“S.S.
Clerks”); Virginian Ry. Co. v. Sys. Fed’n No. 40, 300
U.S. 515, 545-46 (1937). Furthermore, “[a]nimus
8
claims” under Sections 2, Third and Fourth “may be
litigated in federal court” instead of submitted to arbitration “because they cannot ‘be conclusively resolved’
by interpreting or applying a CBA.” Pet.App. 12a,
quoting Consolidated Rail Corp. v. Ry. Lab. Executives’ Ass’n, 491 U.S. 305 (1989) (“Conrail”). As the
court explained, “[t]he question to be answered in this
case [] is whether the railroad interfered with the employees’ choice of representation[;]” “[t]hat is a statutory question, not a contractual one.” Pet.App. 12a.
The court of appeals further supported the district
court’s jurisdictional finding by pointing to its own
precedent that has long recognized interference under
Section 2, Third as a federal statutory claim cognizable in court. Pet.App. 8a-9a, citing Central of Georgia,
supra. The court explained that in- and out-of-circuit
decisions have continued to recognize Section 2, Third
and Fourth interference claims where the union is es“postcertification”—following
this
tablished—or
Court’s decision in Trans World Airlines, Inc. v. Indep.
Fed’n of Flight Attendants, 489 U.S. 426 (1989)
(“TWA”), which said that Section 2, Fourth addresses
“primarily the precertification rights and freedoms of
unorganized employees.” Pet.App. 9a-12a.
The court of appeals also found no abuse of discretion in the district court’s fact-finding. Pet.App. 15a.
The court held that the district court’s finding that the
Carrier was motivated by a desire to weaken the local
division was amply supported by the following facts:
(1) Union Pacific indefinitely suspended all of Division 192’s active duty leadership because of a dispute they had with an employee who favored the
[Carrier]’s position in a policy dispute; (2) Union
Pacific premised the discipline on a fight that occurred off-duty and outside the workplace, even
9
though four of the suspended union officials did not
participate in the fight; (3) the pro-[Carrier] employee who started the fight was not disciplined, despite the [Carrier]’s policy of disciplining all participants in a physical altercation; and (4) Union
Pacific took a statement from the pro-[Carrier] employee but did not take a statement from the union
officials before suspending them.
Pet.App. 15a-16a.
The Carrier petitioned for rehearing en banc. The
court of appeals denied the petition, with no judge in
active service requesting a vote. Pet.App. 41a.
ARGUMENT
In its Petition, Union Pacific presents two questions for this Court to consider. The first alleges that
the courts of appeals are split over the meaning of
“representative” in Section 2, Third. Pet. i. The second asks whether there exists any federal claim under the RLA for intentional interference motivated by
antiunion animus, or if these claims must be submitted to arbitration. Ibid. We address these questions
in reverse order so that this Court may understand
the statutory framework before considering the alleged split among the circuits.
I. The Courts of Appeals’ Uniform
Recognition that Sections 2, Third and
Fourth are Enforceable in Federal Court
Against Claims of Interference Motivated
by Antiunion Animus Effectuates the
Statutory Design and Adheres to the
Decisions of this Court
Union Pacific’s primary argument for a grant of
certiorari is that this Court should entirely erase fed-
10
eral jurisdiction to hear the narrow band of cases under Section 2, Third that allege carrier conduct motivated by antiunion animus interferes with an
established—or “postcertification”—labor union. Pet.
16-18. The Carrier argues recognition of this type of
claim defies the statute’s text because all such interference claims are “minor disputes” that must be arbitrated under the RLA, and it cites as support this
Court’s decisions enforcing compulsory arbitration of
minor disputes. Pet. 16-18.
Unfortunately for the Carrier, it failed to preserve
this argument. The Carrier accepted below that, in
“extraordinary circumstances[,]” federal courts had
jurisdiction over certain postcertification Section 2,
Third or Fourth claims; it simply argued that the instant factual scenario did not fit the recognized claim.
See Pet.App. 13a; see also Brief for Appellant at p.
25, Bhd. of Locomotive Eng’rs & Trainmen v. Union
Pac. R.R. Co., 31 F.4th 337 (5th Cir. 2022), 2021 WL
3822940 (“Courts May Enjoin Carrier Actions In A
Minor Dispute Only In Extraordinary Circumstances”); Petition for Rehearing En Banc at 8, id., 2150544, Doc. 516297773 (arguing that courts that
have allowed claims alleging violation of Section 2,
Third or Fourth due to interference motivated by antiunion animus “have relied on extraordinary, narrowly-circumscribed circumstances justifying federal
court intervention”). The Carrier’s argument was
then not preserved.
Even if it were preserved, Union Pacific’s argument
is counter to the uniform position of the courts of appeals as well as the statutory design and this Court’s
decisions on the reach of the RLA’s compulsory arbitration provisions.
11
A. As Union Pacific Concedes, Every Court of
Appeals that has Addressed the Question
has Found that Federal Courts have
Jurisdiction Over Section 2, Third and
Fourth Claims Alleging Interference
Motivated by Antiunion Animus
The courts of appeals for decades have recognized a
right to sue in federal court to enforce Sections 2,
Third and Fourth where a carrier intentionally interferes with the employees’ choice of representative
through conduct that is motivated by antiunion animus; indeed, the Carrier concedes that every court of
appeals that has addressed the issue has found that
courts may hear such claims. Pet. 14-15; See, e.g.,
Central of Georgia, 305 F.2d at 605; Ry. Lab. Executives’ Ass’n v. Boston & Maine Corp., 808 F.2d 150 (1st
Cir. 1986); Indep. Union of Flight Attendants v. Pan
Am. World Airways, Inc., 789 F.2d 139 (2d Cir. 1986);
Air Line Pilots Ass’n, Int’l v. United Air Lines, Inc.,
802 F.2d 886 (7th Cir. 1986); Tello v. Soo Line R.R Co.,
772 F.2d 458 (8th Cir. 1985); Fennessy v. Southwest
Airlines, 91 F.3d 1359 (9th Cir. 1996); Davies v. Am.
Airlines, Inc., 971 F.2d 463 (10th Cir. 1992); Stewart
v. Spirit Airlines, Inc., 503 Fed. Appx. 814 (11th Cir.
2013). This uniformity among the courts of appeals
alone strongly counsels against a grant of certiorari.
But these decisions are also compelled by the statutory design and this Court’s decisions.3
The courts of appeals do not describe the antiunion animus
grounds for a Section 2, Third or Fourth claim in precisely the same
terms. The Carrier suggests that this Court should grant certiorari to clarify the scope of the antiunion animus claim. Pet. 16.
However, the Carrier does not—and cannot—point to any cases in
which similar facts were treated differently by the courts of appeals. Accordingly, there is no need to grant certiorari to clarify the
scope of the antiunion animus claims that are cognizable in court.
3
12
B. This Court has Held that Judicial
Enforcement of Sections 2, Third and
Fourth is Essential to the RLA’s Statutory
Design, and that Need for Judicial
Enforcement Exists Throughout the
Collective Bargaining Relationship
As this Court has stated, “[t]he purpose of the Railway Labor Act was to provide a framework for peaceful settlement of labor disputes between carriers and
their employees[.]” Union Pac. R.R. Co. v. Price, 360
U.S. 601, 609 (1959). And because the “assumption as
well as the aim of th[e] Act is a process of permanent
conference and negotiations between the carriers on
the one hand and the employees through their union
on the other[,]” Elgin, J. & E. Ry. Co. v. Burley, 325
U.S. 711, 753 (1945), “[f]reedom of choice in the selection of representatives on each side of the dispute is
the essential foundation of the statutory scheme.”
S.S. Clerks, 281 U.S. at 569. As such, this Court has
long recognized that enforcement of Section 2, Third
and Fourth rights through federal litigation is essential to the RLA’s design.
In passing the RLA in 1926, Congress was informed
by the failure of prior legislation that solely encouraged voluntary action. Gen. Comm. of Adjustment v.
Mo.-Kan.-Tex. R.R. Co., 320 U.S. 323, 328-29 and n. 3
(1943). In particular, Congress looked to the failings
of the Railroad Labor Board, created under the Transportation Act of 1920. S.S. Clerks, 281 U.S. at 560-61.
Soon after its creation, this Court held that the Railroad Labor Board’s decisions were not legally enforceable. See Penn. R.R. Co. v. U.S. R.R. Labor Board, 261
U.S. 72 (1923) (holding that the railroad did not have
to comply with Labor Board decision settling a dispute over representation, after the railroad refused to
13
recognize the union and instead conducted its own
representation election); Penn. R.R. Sys. & Allied
Lines Fed’n No. 90 v. Penn. R.R. Co., 267 U.S. 203, 217
(1925) (holding that, even though the railroad was
“seeking to control its employees by agreements free
from the influence of an independent trade union” and
was “thus defeating the purpose of Congress,” it did
not have to comply with the Labor Board’s decision).
The RLA then “made a basic change in the pattern
of the railway labor legislation which had preceded”
it. Mo.-Kan.-Tex. R.R. Co., 320 U.S. at 329. “While
adhering in the new statute to the policy of providing
for the amicable adjustment of labor disputes, and for
voluntary submissions to arbitration as opposed to a
system of compulsory arbitration, Congress buttressed
this policy by creating certain definite legal obligations.” S.S. Clerks, 281 U.S. at 564.
In S.S. Clerks, this Court held that Section 2, Third
provided one of those legal obligations “enforceable by
judicial proceedings.” Id. at 567. There, a dispute arose
between the railroad and its recognized, independent
union over wages; the railroad responded to the dispute
by creating a company union and coerced employees to
abandon the recognized union and join the carrierdominated one. Id. at 555. The independent union
sued in federal court, alleging that the carrier’s actions
violated the newly passed Section 2, Third by
“prevent[ing] the railway clerks from freely designating their representatives[.]” Id. at 555, 557. The district court enjoined the carrier’s actions, and this Court
affirmed. The Court reasoned that because “the entire
policy of the act[ ] depend[s] for success on the uncoerced action of each party through its own representatives[,]” “the conclusion must be that enforcement [of
Section 2, Third] was contemplated” by Congress. Ibid.
14
Accordingly, by finding Section 2, Third judicially enforceable, “what had long been a ‘right’ of employees
enforcible only by strikes and other methods of industrial warfare emerged as a ‘right’ enforcible by judicial
decree.” Mo.-Kan.-Tex. R.R. Co., 320 U.S. at 330.
In 1934, Congress amended the RLA, and the “prohibition against interference was continued and made
more explicit” with the addition of, among other things,
Section 2, Fourth. Virginian Ry. Co., 300 U.S. at 543.
“A primary purpose of the major revisions made in
1934 was to strengthen the position of the labor organizations vis-a-vis the carriers, to the end of furthering
the success of the basic congressional policy of self-adjustment of the industry’s labor problems between carrier organizations and effective labor organizations.”
Int’l Ass’n of Machinists v. Street, 367 U.S. 740, 759.
Following the 1934 amendment, this Court continued to acknowledge that Section 2, Third—and now
Fourth—are judicially enforceable. Virginian Ry. Co.,
300 U.S. at 544; Mo.-Kan.-Tex. R.R. Co., 320 U.S. at
329-32; Steele v. Louisville & N.R. Co., 323 U.S. 192,
207 (1944). And this Court built on its holding that
Section 2, Third is enforceable in federal court to find
that other provisions of the RLA also grant judicially
enforceable rights. See, e.g., Virginian Ry. Co., 300
U.S. at 545 (holding that Section 2, Ninth’s requirements that employer treat with union certified by the
National Mediation Board and exert every reasonable
effort to make and maintain collective bargaining
agreements was judicially enforceable); Steele, 323
U.S. at 207 (holding that employees represented by a
union may bring a claim in federal court that union
breached its duty to represent them fairly).
Accordingly, for nearly the entire life of the RLA,
this Court has recognized that Sections 2, Third and
15
Fourth grant rights that the statutory design requires
to be judicially enforceable. Indeed, the statutory design requires courts to protect the parties’ choice of
representative even after a union is established. See
S.S. Clerks, 281 U.S. at 555 (reporting that employer
had recognized the union prior to coercing employees
to join carrier-dominated one). The statute’s design
depends on the parties’ freedom to choose representatives at all times; otherwise, the “process of permanent
conference and negotiations” would fail.
C. This Court Has Clarified that only
Contractual—and not Statutory—Disputes
are Subject to Arbitration under the RLA
In addition to creating certain statutory protections,
“the RLA establishes a mandatory arbitral mechanism for ‘the prompt and orderly settlement’ of two
classes of disputes.” Hawaiian Airlines, Inc. v. Norris,
512 U.S. 246, 252 (1994). These two classes are known
as “major disputes” and “minor disputes,” “terminology[] drawn from the vocabulary of rail management
and rail labor[.]” Conrail, 491 U.S. at 302. Major disputes are those “concerning rates of pay, rules or
working conditions[,]” 45 U.S.C. § 151a, and so “relate
to the formation of collective bargaining agreements
or efforts to secure them.” Hawaiian Airlines, 512
U.S. at 252 (cleaned up). Minor disputes are those
“growing 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, and
so “involve controversies over the meaning of an existing collective bargaining agreement in a particular
fact situation.” Hawaiian Airlines, 512 U.S. at 252
(cleaned up). In sum, “major disputes seek to create
contractual rights, minor disputes to enforce them.”
Conrail, 491 U.S. at 302.
16
The RLA subjects the two disputes to different
treatment. For major disputes, “the RLA requires
the parties to undergo a lengthy process of bargaining and mediation.” Conrail, 491 U.S. at 302; see
also Bhd. of R.R. Trainmen v. Jacksonville Terminal
Co., 394 U.S. 369, 378 (1969) (summarizing major
dispute procedures under the RLA). In contrast, “[a]
minor dispute in the railroad industry is subject to
compulsory and binding arbitration before the National Railroad Adjustment Board, or before an adjustment board established by the employer and the
unions representing the employees.” Conrail, 491
U.S. at 303 (cleaned up).
The Carrier suggests that any dispute between a
carrier and an established union is a minor dispute
subject to the RLA’s “mandatory, exclusive, and comprehensive” arbitration provisions. Pet. 16, quoting
Bhd. of Locomotive Eng’rs v. Louisville & Nashville
R.R. Co., 373 U.S. 33, 38 (1963). However, this Court
has made clear that the RLA’s compulsory arbitration
provisions for minor disputes are exclusive only with
respect to disputes arising from a collective bargaining agreement. Hawaiian Airlines, 512 U.S. at 253254; Bhd. of R.R. Trainmen v. Howard, 343 U.S. 768,
774 (1952) (“The claims here cannot be resolved by
interpretation of a bargaining agreement so as to give
jurisdiction to the Adjustment Board[.]”). Indeed, this
Court has repeatedly declined to apply the RLA’s compulsory arbitration provisions to claims that are independent of a CBA. See, e.g., Hawaiian Airlines, at 266
(holding that state law claims of discharge in violation
of public policy and a state whistleblower law are not
minor disputes subject to the RLA’s arbitration provisions, even where the parties’ CBA contains a just
cause discharge provision); Atchison, Topeka and
Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 565-66 (1987)
17
(holding that a claim under the Federal Employers’
Liability Act that could also be a grievance was not a
minor dispute subject to the RLA’s arbitration provisions); Terminal R. Ass’n of St. Louis v. Bhd. of R.R.
Trainmen, 318 U.S. 1, 7 (1943) (holding that the parties’ dispute over the railroad’s compliance with a
state law requirement for the provision of cabooses
was not a minor dispute subject to the RLA’s arbitration provisions, even where the parties’ CBA addressed the provision of cabooses); Mo. Pac. R. Co. v.
Norwood, 283 U.S. 249, 258 (1931) (holding that state
law regulating the number of workers required to operate certain equipment was not preempted by the
RLA’s arbitration provisions); cf. Lingle v. Norge Div.
of Magic Chef, Inc., 486 U.S. 399, 410 (1988) (holding
that, “as long as the state-law claim can be resolved
without interpreting” the CBA, an employee’s claim of
unlawful discharge in retaliation for exercising worker’s compensation rights was not pre-empted by § 301
of the Labor Management Relations Act, 29 U.S.C.
§ 185, even where the CBA contained a just cause discharge provision). This is so even where the claim is
based on a statutory right found—as with the instant
case—in the RLA itself. Howard, 343 U.S. at 774
(claim brought to enforce right under the RLA to not
be discriminated against by a labor union not subject
to compulsory arbitration).4
Accordingly, this Court has conclusively held that
claims independent of the CBA are not minor disputes
subject to the compulsory arbitration provisions of the
RLA, even where employees may also have a contracAdditionally, “the adjustment boards charged with administration of the minor-dispute provisions have understood those
provisions as pertaining only to disputes invoking contract-based
rights.” Hawaiian Airlines, 512 U.S. at 254 (collecting cases).
4
18
tual grievance that is subject to arbitration. Indeed,
this Court has refused to order to arbitration claims
borne of the very type of disciplinary action that Union
Pacific asserts “must be arbitrated.” Pet. 11; compare
Hawaiian Airlines, 512 U.S. at 258 (finding a whistleblower retaliation claim was not subject to RLA’s arbitration provisions because “the CBA is not the only
source of respondent’s right not to be discharged
wrongfully[,]” and that the employee’s claim asserted
only the statutory right to not be discharged in retaliation for his whistleblowing (cleaned up)), with Andrews v. Louisville & Nashville R.R. Co., 406 U.S. 320,
324 (1972) (“Here it is conceded by all that the only
source of petitioner’s right not to be discharged . . . is
the [CBA],” and because “the disagreement turns” “on
the interpretation of the [CBA,]” petitioner’s “claim is
[ ] subject to the Act’s requirement that it be submitted to the Board for adjustment.”).
That such statutory disputes are resolved by federal
courts is uncontroversial amongst the management
and labor bar. See doUglas W. hall and maRcUs
mIglIoRe, eds., The RaIlway LaBoR Act, Ch. 1.III.D.,
p. 19 (BNA 2021) (“These disputes, described in this
treatise as ‘statutory disputes’ to distinguish them from
the other categories of disputes, fall within the jurisdiction of the courts. Examples of such disputes are those
over the rights and obligations arising under RLA Section 2, Third (parties’ right to designate representatives without interference or coercion) [and] Section 2,
Fourth (right of employees to organize and bargain
through freely chosen representatives)” (cleaned up)).
Thus, the Carrier is clearly wrong when it argues
that this Court’s TWA decision requires federal jurisdiction to give way where congressionally established
remedies—here, compulsory arbitration—are avail-
19
able. Pet. 18-19. Compulsory arbitration under the
RLA is exclusive only to disputes arising out of a CBA.
For those claims not arising from a CBA, this Court
has held that judicial intervention is warranted 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.” TWA, 489 U.S. at 441, quoting
Switchmen’s Union v. NMB, 320 U.S. 297, 300 (1943).
The Carrier fairs no better by arguing that TWA
recognized that Section 2, Third “primarily applies
before employees choose a collective-bargaining representative[,]” and that allowing claims brought pursuant to that provision postcertification would improperly inject federal courts into minor disputes.
Pet. 19-20 (emphasis in original). As support, the
Carrier points to TWA’s statement that Section 2,
Fourth “address[es] primarily the precertification
rights and freedoms of unorganized employees.” 489
U.S. at 440. But, on its face, this language does not
foreclose postcertification claims; as the district court
below explained, it simply indicates that Section 2,
Fourth “primarily” addresses precertification rights.
Pet.App. 35a. Moreover, the Court was not addressing whether a violation of Section 2, Fourth constituted a minor dispute that was subject to arbitration,
but instead was responding to the union’s argument
that Section 2, Fourth limited the self-help activities
that the airline could engage in upon completion of
the negotiation and mediation procedures for a major
dispute. TWA, 489 U.S. at 440. The Court emphasized Section 2, Fourth’s primary focus on initial
union organizing only to show that Congress did not
intend for that provision to limit the use of economic
weapons once parties had exhausted the procedural
framework for major disputes. Id. at 441-42. Addi-
20
tionally, the Court was addressing solely Section 2,
Fourth, and not Section 2, Third. The district court
based its preliminary injunction on both Sections 2,
Third and Fourth. Pet.App. 9a. The two provisions
differ in language5 and history6, such that TWA’s discussion of one cannot simply be extended to the other. As such, as the court of appeals below indicated,
the lower courts have not understood TWA to foreclose postcertification Section 2, Third or Fourth
claims. Pet.App. 9a-11a (collecting post-TWA cases
recognizing such claims).
D. The Courts of Appeals’ Recognition of
Section 2, Third and Fourth Claims of
Interference Motivated by Antiunion
Animus Flows Directly from this Court’s
Decisions Regarding the RLA’s Design
and the Reach of the Statute’s Arbitration
Provisions
Adhering to this Court’s decisions, the courts of appeals have thus repeatedly held that Section 2, Third
and Fourth claims for intentional interference motivated by antiunion animus are claims enforcing statutory
rights and so fall outside the RLA’s compulsory arbitration provisions. The first court of appeals to directly
Section 2, Fourth’s primary emphasis on the right to organize
is clear from its repeated references to that right. See, e.g., 45
U.S.C. § 152, Fourth (“Employees shall have the right to organize
and bargain collectively through representatives of their own
choosing.”; “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.”). In contrast,
the Section 2, Third does not reference the right to organize.
5
Section 2, Third was included in the original Act, while Section 2, Fourth was added in 1934 when company unions became
a hurdle to organizing. Virginian Ry. Co., 300 U.S. at 545-46.
6
21
address the issue was the Fifth Circuit in Central of
Georgia, supra.7 There, the employer issued a notice of
discipline for disloyalty to the chairman of the union’s
grievance committee. 305 F.2d at 606. The charge of
disloyalty was due to the advice the chairman gave to
employees in the course of his union duties. Ibid. The
union sought an injunction in federal court, and alleged
that the railroad intended to discharge the chairman in
an effort to “hamper, impede, and hinder” the union.
Id. at 607. Initially, the court held that the personal
claim the chairman had against the carrier as an employee of the carrier was a minor dispute that was subject to arbitration. Ibid. But the court pointed out that
any claim of the representative pursuant to the carrier’s discipline of the chair must be analyzed differently.
Ibid. Relying on S.S. Clerks, the court of appeals agreed
that the union’s claim, taken as true, was cognizable in
federal court. Id. at 608. “If a carrier must recognize
and bargain in good faith with the representative—and
it surely must—then it is not free to destroy the process
of collective bargaining and resolution of industrial
grievances by wrongly destroying the effectiveness of
the chosen representative.” Ibid.
Since Central of Georgia, the courts of appeals have
uniformly continued to recognize that claims under
The Sixth Circuit earlier issued an injunction against a carrier and union that attempted to apply their CBA’s union security
clause against an employee who also performed work in another
craft, and who was a member in good standing of the union of that
other craft. Bhd. of R.R. Trainmen v. Smith, 251 F.2d 282 (6th
Cir. 1958). There, the court of appeals held it had jurisdiction because the controversy turned on the meaning of the statute, not
the collective bargaining agreement. Id. at 285. Though the court
of appeals primarily looked to Section 2, Eleventh (a), 45 U.S.C.
§ 152, Eleventh (a), as the source of the statutory violation, it also
relied on Section 2, Fourth to support its injunction. Id. at 286-87.
7
22
Sections 2, Third and Fourth of carrier interference
motivated by antiunion animus fall outside the RLA’s
compulsory arbitration provisions. See, e.g., Boston &
Maine Corp., 808 F.2d at 157-58 (“The case against
[the railroad] presents a claim of statutory violation.
In our opinion such a controversy involves the substantive rights protected by the RLA and is within the
competency of the district courts because these are
claims that cannot be resolved by interpretation of the
collective bargaining agreement.” (emphasis in original)); Fennessy, 91 F.3d at 1363 (explaining that if an
employee’s “statutory rights have been violated, the
fact that [his union] may represent him before the Adjustment Board does nothing to remedy that problem.
Judicial recognition of his cause of action would therefore seem to be one of 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 [RLA].” (cleaned up)).
Indeed, to emphasize the distinction between statutory and contractual claims courts of appeals have made
clear that “[a]nti-union motivation invalidates even a
discharge which could be justified on independent
grounds.” Conrad v. Delta Airlines, Inc., 494 F.2d 914,
918 (7th Cir. 1974); Davies, 971 F.2d at 466 (“The gravamen of [plaintiff ’s] action is that [the airline’s] actual or primary motivation in firing him, irrespective
of any ‘just cause’ it may have had under the CBA, was
to stop his union organizing. Thus, . . . [the] action
does not require interpretation of the CBA and is
therefore not preempted by the RLA on that ground.”).8
Union Pacific claims that Section 2, Third or Fourth claims
can be addressed by arbitrators because Section 2, Eighth requires that those paragraphs be incorporated into collective bargaining agreements. Pet. 20 n. 1; 45 U.S.C. § 152, Eighth. Not so.
The language of Section 2, Eighth “makes it clear that these pro8
23
The injunctive relief issued in the instant case further
illustrates the differences in statutory and contractual
claims, as that relief is not available in arbitration.
While the courts of appeals have recognized Sections 2, Third and Fourth claims involving intentional
interference motivated by antiunion animus, they
have highlighted the narrowness of cognizable claims,
particularly postcertification. See, e.g., Bhd. of Locomotive Eng’rs v. Kansas City Southern Ry. Co., 26 F.3d
787, 795 (8th Cir. 1994) (“no cause lies under § 2 Third
when the complaining party fails to present adequate
evidence that the railroad’s action 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” (cleaned
up)); Ass’n of Flight Attendants v. Horizon Air Industries, Inc., 280 F.3d 901, 906 (9th Cir. 2002) (“the facts
in this case do not reveal any ‘exceptional circumstances’ necessitating judicial intervention, such as a
policy motivated by anti-union animus or circumstances that significantly undermine the functioning
of the union.”). The narrowness of a claim of unlawful
interference motivated by antiunion animus then fits
within the limits this Court articulated to postcertification Section 2, Fourth claims in TWA: “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.” 489 U.S at 441.
visions are incorporated within the individual contract of employment between the employer and employee rather than the collective bargaining agreement, which is referred to in the [RLA] as
the ‘agreement concerning rates of pay, rules and working conditions.’ ” Texas Int'l Airlines, Inc. v. Ass'n of Flight Attendants, 498
F. Supp. 437, 447 (S.D. Tex. 1980), aff'd sub nom. Texas Int'l v.
Ass'n of Flight Attendants, 667 F.2d 1169 (5th Cir. 1982).
24
The decision of the court of appeals below squarely
fits this Court’s precedent and the decades long treatment of antiunion animus claims under Sections 2,
Third and Fourth. The court of appeals understood
that the claim of interference under Section 2, Third
was recognized by this Court in S.S. Clerks and Virginian Ry. Co. Pet.App. 7a-8a. It further acknowledged
that its own precedent, as well as its sister circuits’
precedent, allowed for federal jurisdiction over claims
of intentional interference motivated by antiunion animus under Section 2, Third, including after this Court’s
decision in TWA. Pet.App. 7a-11a. The court found
that animus claims like the instant one may be litigated in federal court—as opposed to arbitration—because
they cannot “be conclusively resolved” by interpreting
or applying the CBA. Pet.App. 12a, quoting Conrail,
491 U.S. at 305. Moreover, it appreciated that the
grounds for a claim were narrow, and limited to the
“exceptional circumstance” that the district court found
to be present. Pet.App. 13a. And it determined that
the district court found ample facts to support the claim
of antiunion animus. Pet.App. 15a-16a.
As the decision comports with the statutory design
and this Court’s precedent, as well as that of the courts
of appeals, there is no basis for this Court to grant
certiorari.
II. The Court of Appeals Decision Does Not
Allow Unions to Escape Arbitration of
Disciplinary Matters By Simply Alleging
Antiunion Animus
Union Pacific argues that the court of appeals’ decision will lead to unions flooding the federal courts
with routine disciplinary matters by merely alleging
the discipline of union officers was motivated by anti-
25
union animus. Pet. 23-24. This is simply not so. First,
as demonstrated above, the courts of appeals have
recognized a narrow claim of interference under Section 2, Third involving antiunion animus for over sixty-years, and there has been no inundation of the federal courts with routine disciplinary matters in that
time. Second, the Union’s instant Complaint did not
merely allege an antiunion motivation; it alleged specific facts that supported the legal conclusions. See
Complaint ¶¶ 2, 22, 23, 26, 28, 42, 46. It then proved
those facts before the district court through evidence
and sworn testimony presented in support of and during the preliminary injunction hearing. As the case
law described above indicates, a bare allegation of antiunion animus without any supporting facts would
not state a cognizable claim. There is then no warrant
for this Court to grant certiorari to protect the courts
of appeals from an imaginary avalanche of cases.
III. Section 2, Third Prohibits Interference
with the Parties’ Designated
“Representative,” and there is no Circuit
Split Over Which “Representative” That Is
Before the court of appeals, the Carrier argued that
federal courts may hear claims under Section 2, Third
only if a union alleges that the carrier undermined the
union nationally, and not just at the local level. See
Pet.App. 16a. In dismissing this argument, the court
of appeals noted that “[n]o authority support[ed] that
view[,]” and indeed, courts have exercised jurisdiction
over claims “involving disciplinary actions that targeted an individual union representative or a particular union branch.” Ibid. (citations omitted). The court
of appeals further observed that the “RLA’s text” does
not “create a national/local distinction.” Ibid. Instead,
“[i]t says that carriers shall not ‘seek in any manner’
26
to interfere with employees’ ‘choice of representatives’;
there is no mention of particular offices or duties those
representatives must have.” Ibid. In context, the
court of appeals plainly indicated that Section 2,
Third’s prohibition applies to efforts to interfere with
a chosen representative whether that interference is
at the national or—as here—at the local level.
Yet, the Carrier pounces on this last statement to
claim that the court of appeals’ decision expansively
“holds that ‘representative’ includes any union officer
who represents union members for any purpose or in
any capacity[,]” “even if they have no involvement in
collective bargaining.” Pet. 11 (emphasis in original).
The Carrier then claims—for the first time in this litigation—that this conflicts with decisions in the Sixth
Circuit—which limits “representative” to “a collective
bargaining representative,” citing Int’l Bhd. of Teamsters v. United Parcel Serv. Co., 447 F.3d 491 (6th Cir.
2006)—and the Second Circuit—which limits “representative” to “the union itself, not an individual union
officer,” quoting United Transp. Union v. Nat’l Railroad Passenger Corp., 588 F.3d 805 (2d Cir. 2009)
(“Amtrak”). Pet. 12. Thus, according to the Carrier,
local union officers are the designated “representatives” for purposes of Section 2, Third in the Fifth Circuit, but not in the Sixth and Second Circuits. Not
only is this a novel, and thus unpreserved, argument,
but it takes the court of appeals’ statement out of context, and misunderstands basic labor law terminology.
There is no split among the courts of appeals over
the meaning of “representative.” Curiously, in its Petition, Union Pacific fails to mention that the RLA
supplies a definition of “representative”—“any person
or persons, labor union, organization, or corporation
designated either by a carrier or group of carriers or
27
by its or their employees, to act for it or them.” 45
U.S.C. § 151, Sixth. Accordingly, Section 2, Third’s
references to employees’ “representative” means the
person, union, or other organization designated by the
employees to represent them, and with whom the employer must “treat,” that is, engage in collective bargaining. See generally 45 U.S.C. § 152, Ninth. Here,
that is the Union, Pet.App. 19a, and not individual
Union officers, just as it was in UPS and Amtrak.
Here, the court of appeals plainly understood the
“representative” the Carrier unlawfully interfered
with was the Union. In summarizing the district
court’s conclusions, the court of appeals stated that
“Union Pacific had used its disciplinary proceedings
‘as pretext for undermining’ the union.” Pet.App. 6a,
quoting Pet.App. 33a (emphasis added). It described
the Union’s claim as alleging “that the [disciplinary]
charges are pretext for a plot to inhibit the employees’
ability to act as union representatives and thereby
weaken the union.” Pet.App. 9a (emphasis added). It
found ample support for the district court’s finding
that the Union was likely to succeed in showing that
the discipline was “motivated by a desire to weaken
the local division” of the Union. Id. at 15a, quoting
Pet.App. 31a (emphasis added). Accordingly, the court
of appeals agreed with the district court’s jurisdictional
determination not because the Carrier disciplined all
five active union officers, but because it disciplined all
five active union members as a pretext to weaken Division 192, i.e., to weaken the Union.
This decision is entirely consistent with the cited
decisions in the Sixth and Second Circuits. As an initial matter, any claim that the term “collective bargaining representative” refers to an individual union
officer who engages in collective bargaining—as op-
28
posed to referring to “the union itself”—is entirely
misplaced. A union designated under the RLA is the
collective bargaining representative. See, e.g., Mo.Kan.-Tex. R. Co., 320 U.S. at 325 (“The petitioner . . .
is a committee of the Brotherhood of Locomotive Engineers which has been and is the duly designated bargaining representative of the craft of engineers employed by the carrier.”); Steele, 323 U.S. at 194
(“Respondent Brotherhood, a labor organization, is, as
provided under Section 2, Fourth of the Railway Labor Act, the exclusive bargaining representative of the
craft of firemen employed by the Railroad and is recognized as such by it and the members of the craft.”).9
There is then no conflict among the courts of appeals,
as in each case cited by Union Pacific, the court understood the “representative” to be the union.10
Additionally, just as the court of appeals below did,
the Sixth and Second Circuits understood that Section
2, Third’s reference to “representative” meant the employees’ chosen representative under the RLA—in
each case, the union—as opposed to individual union
officers. In UPS (a case the Carrier never cited beThe Carrier’s argument that this Court’s decisions suggest
an understanding of “representative” to mean individual union
officers who participate in collective bargaining, Pet. 14, fails for
the same reason—it is premised on a miscomprehension of the
term “collective bargaining representative.”
9
Even if somehow this Court were to construe “representative” to be union officers who participate in collective bargaining,
that would be apply to the five suspended Union officers. These
officers play a vital role in processing grievances under the CBA.
Decl. of Peter Shepard, supra. This Court has explicitly held
that the grievance procedure is an extension of the collective bargaining process. United Steelworkers of Am. v. Warrior & Gulf
Nav. Co., 363 U.S. 574, 581 (1960) (“The grievance procedure is
. . . a part of the continuous collective bargaining process.”).
10
29
low), the Sixth Circuit dismissed the union’s Section
2, Third claim of interference where the employer and
union had a dispute over who had authority to appoint
the chair of a joint safety committee that the parties’
CBA created. 447 F.3d at 496, 500-01. The court of
appeals initially held that the parties’ dispute was a
minor dispute, as it could be conclusively resolved
through interpretation of the parties’ CBA. Id. at 499500. The court of appeals then correctly held that the
disputed appointee was not the representative referenced in Section 2, Third. Id. at 501. The court properly recognized that “representative” referred to the
collective bargaining representative—i.e, the union—
and that the disputed appointee was not himself the
employees’ designate representative with whom the
employer was required to treat for collective bargaining purposes, but rather the chair of a joint unionmanagement committee. Ibid. (“Had [the disputed
union appointee] been the representative of UPS employees for negotiating a collective bargaining agreement with the Carrier, that might have been a different matter.”).11 Since there were no allegations that
the employer was interfering with the union itself, as
opposed to the CBA-created joint safety committee,
there was no cognizable claim under Section 2, Third.
See id. at 502 (finding that there were no allegations
of antiunion animus, coercion, or intimidation, and
that the employer was willing to treat with the disputed appointee in his other union roles).
The designated representative under the RLA does not have
to be a union. See 45 U.S.C. §151, Sixth (defining “representative” to include “any person or persons, labor union, organization, or corporation”); Russell v. NMB, 714 F.2d 1332, 1341 (5th
Cir. 1983) (holding that NMB must process representation petition filed by individual seeking to replace certified union).
11
30
In Amtrak, the Second Circuit dismissed the union’s
claim that Section 2, Third immunized an individual
union official from any discipline for misconduct—
there, attempting to bribe a witness—while performing
union activities. 588 F.3d at 808, 814. In dismissing
the union’s argument, the court of appeals noted that
“the term ‘representative,’ as used in the RLA, refers to
a union or other organization designated to represent
an employee, and not merely to an individual official.”
Id. at 814. Because the union was challenging an arbitration award, and did not rely on the antiunion animus basis to sue directly in federal court, there was no
allegation that the discipline was a pretext for an effort
to undermine the union. See id. at 814.
All three court of appeals’ decisions are then entirely
consistent. Each reads the protections in Section 2,
Third to extend to—consistent with the statutory definition—the employees’ designated representative. In
each case, that was the employees’ union. In UPS and
Amtrak, there were no allegations that the employer’s
conduct undermined or interfered with the union, and
so there was no violation of Section 2, Third. In the instant matter, the Union did allege—and the district
court found—that the discipline of the five active union
officers was intended to interfere with the Union’s local
division, and so there was a violation of Section 2, Third.
Accordingly, there is no basis for granting certiorari
on the Carrier’s first question presented, as there is no
circuit split to resolve.
31
CONCLUSION
The petition for certiorari should be denied.
James R. TanneR
Counsel of Record
Tanner and Associates, PC
6300 Ridglea Place,
Suite 407
Fort Worth, TX 76116
(817) 377-8833
rtanner@rodtannerlaw.com
Date: November 10, 2022
JoshUa d. mcIneRney
James PetRoff
Wentz, McInerney, Peifer
& Petroff, LLC
14 E. Gay Street, FL 4
Columbus, Ohio 43215
(614) 756-5566
jmcinerney@lawforlabor.com
jpetroff@lawforlabor.com
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.