Petition for Writ of Certiorari — Ali Bahreman, Petitioner v. Allegiant Air, LLC, et al.
Supreme Court briefApr 21, 2025
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No. 25-_____
IN THE
Supreme Court of the United States
_____________
ALI BAHREMAN,
Petitioner,
v.
ALLEGIANT AIR, LLC; TRANSPORT WORKERS UNION OF
AMERICA LOCAL 577,
Respondents.
_____________
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Ninth Circuit
_____________
PETITION FOR WRIT OF CERTIORARI
_____________
MATTHEW B. GILLIAM
Counsel of Record
MILTON L. CHAPPELL
c/o NATIONAL RIGHT TO
WORK LEGAL DEFENSE
FOUNDATION, INC.
8001 Braddock Road,
Suite 600
Springfield, VA 22160
(703) 321-8510
mbg@nrtw.org
mlc@nrtw.org
Counsel for Petitioner
April 21, 2025
i
QUESTIONS PRESENTED
The Railway Labor Act (“RLA”), 45 U.S.C. § 152
(Fourth), prohibits “influenc[ing] or coerc[ing] employees in an effort to induce them to join or remain …
members of any labor organization,” with one exception. 45 U.S.C. § 152 (Eleventh) (a) permits unions
and employers “to make agreements, requiring as a
condition of continued employment, that … all employees shall become members of the labor organization representing their craft or class[.]”
The duty of fair representation (“DFR”) “require[s]
the union … to represent non-union … members of the
craft without hostile discrimination, fairly, impartially, and in good faith.” Steele v. Louisville & N.R.
Co., 323 U.S. 192, 204 (1944).
The questions presented are:
1. Do a union and employer violate § 2, Fourth by
requiring non-members to financially support a
union in a manner not authorized by § 2, Eleventh (a)?
2. Does a union violate the DFR by denying contractual seniority benefits and bidding privileges to non-member employees who do not financially support the union?
ii
PARTIES TO THE PROCEEDING
Petitioner Ali Bahreman was the plaintiff in the
district court and the appellant in the court of appeals.
Respondents Allegiant Air, LLC, and Transport
Workers Union of America Local 577 were the defendants in the district court and the appellees in the court
of appeals.
CORPORATE DISCLOSURE STATEMENT
A corporate disclosure statement is not required
under Supreme Court Rules 14.1(b)(ii) and 29.6 because the Petitioner is not a corporation.
STATEMENT OF RELATED PROCEEDINGS
This case arises from and is directly related to the
following proceedings:
1. Bahreman v. Allegiant Air, LLC, et al., No. 2316156, U.S. Court of Appeals for the Ninth Circuit. Opinion filed December 10, 2024
(Pet.App.1a-14a), and petition for rehearing en
banc denied January 22, 2025 (Pet.App.33a).
2. Bahreman v. Allegiant Air, LLC, et al., U.S. District Court for the District of Nevada, No. 2:20cv-00437-ART-DJA. Order filed August 9, 2023
(Pet.App.15a-30a), and judgment entered August
31, 2023 (Pet.App.31a-32a; Dist. Ct. Dkt. Entry
No. 108).
iii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ....................................... i
PARTIES TO THE PROCEEDING ........................... ii
CORPORATE DISCLOSURE STATEMENT ........... ii
STATEMENT OF RELATED PROCEEDINGS........ ii
TABLE OF CONTENTS ........................................... iii
TABLE OF AUTHORITIES..................................... vii
OPINIONS BELOW ................................................... 1
JURISDICTION ......................................................... 1
STATUTORY PROVISIONS ..................................... 1
STATEMENT OF THE CASE ................................... 1
I. THE FACTS ..................................................... 2
II. THE PROCEEDINGS BELOW ...................... 3
REASONS FOR GRANTING THE PETITION ........ 5
I. The Court should grant Bahreman’s petition because the Ninth Circuit’s decision
is contrary to Supreme Court and circuit
court RLA precedent ........................................ 8
A. The Ninth Circuit’s decision dismantles Congress’s § 2, Fourth general
agency fee prohibition and the narrow
§ 2, Eleventh (a) exception ......................... 8
B. The Ninth Circuit’s decision that the
RLA does not restrict union agency fee
requirements is contrary to Supreme
Court precedent and violates separation of powers principles .......................... 13
iv
TABLE OF CONTENTS--Continued
Page
C. The Ninth Circuit’s decision is contrary to Supreme Court and circuit
court precedent establishing that unauthorized agency fee requirements
coerce and influence non-members in
violation of § 2, Fourth ............................. 16
II. The Court should grant Bahreman’s petition because the Ninth Circuit’s decision
unravels the duty of fair representation
and is contrary to Supreme Court, circuit
court, and National Labor Relations
Board precedent ............................................. 24
A. The Ninth Circuit’s decision unravels
duty of fair representation protections
by allowing unions to discriminatorily
deny contractual benefits to employees who do not financially support
them .......................................................... 24
B. The Ninth Circuit’s decision raises serious constitutional questions regarding the constitutionality of Congress’s
exclusive representation scheme ............. 27
III. The questions presented are important
to employees’ freedoms from forced unionism, and this case is an ideal vehicle
to resolve them ............................................. 31
CONCLUSION ......................................................... 34
v
TABLE OF CONTENTS--Continued
Page
APPENDIX
Appendix A
Opinion, United States Court of Appeals
for the Ninth Circuit, Bahreman v. Allegiant Air, LLC, et al., No. 23-16156 (December 10, 2024) .................................................. 1a
Appendix B
Order, United States District Court for
the District of Nevada, Bahreman v. Allegiant Air, LLC, et al., No. 2:20-cv-00437ART-DJA (August 9, 2023) .......................... 15a
Appendix C
Judgment, United States District Court
for the District of Nevada, Bahreman v.
Transport Workers Union of America Local 577, No. 2:20-cv-00437-ART-DJA (August 31, 2023)............................................... 31a
Appendix D
Order, United States Court of Appeals for
the Ninth Circuit, Bahreman v. Allegiant
Air, LLC, et al., No. 23-16156 (January
22, 2025) ....................................................... 33a
Appendix E
Statutory Provisions .................................... 34a
45 U.S.C. § 152 (Fourth) ........................ 34a
45 U.S.C. § 152 (Eleventh) ..................... 35a
vi
TABLE OF CONTENTS--Continued
Page
Appendix F
Agency Fee Requirement ............................ 38a
vii
TABLE OF AUTHORITIES
Cases
Page(s)
Addington v. U.S. Airline Pilots Ass’n,
791 F.3d 967 (9th Cir. 2015) ................................. 32
Aguinaga v. UFCW,
993 F.2d 1463 (10th Cir. 1993) .......................... 7, 26
Air Line Pilots Ass’n, Int’l v. O’Neill,
499 U.S. 65 (1991)...................................... 28, 30, 33
Amalgamated Ass’n of St., Elec. Ry. & Motor
Coach Emps. v. Lockridge,
403 U.S. 274 (1971)................................................ 30
American Postal Workers (U.S. Postal Service),
277 N.L.R.B. 541 (1985) ........................................ 27
Bahreman v. Allegiant Air, LLC,
2023 U.S. Dist. LEXIS 139510122,
No. 2:20-cv-00437-ART-DJA
(D. Nev. Aug. 9, 2023).............................................. 1
Bahreman v. Allegiant Air, LLC,
122 F.4th 1155 (9th Cir. 2024) ................................ 1
Barton Brands, Ltd. v. NLRB,
529 F.2d 793 (7th Cir. 1976) .................................. 26
Bennett v. Loc. Union No. 66,
958 F.2d 1429 (7th Cir. 1992) ........................... 7, 26
Bostock v. Clayton Cnty.,
590 U.S. 644 (2020)................................................ 14
Brady v. Trans World Airlines, Inc.,
401 F.2d 87 (3d Cir. 1968) ............... 6, 12, 13, 17, 22
viii
TABLE OF AUTHORITIES--Continued
Cases
Page(s)
Brannian v. City of San Diego,
364 F. Supp. 2d 1187 (S.D. Cal. 2005) .................. 29
Carbonell v. Lopez-Figueroa,
749 F. Supp. 3d 266 (D.P.R. 2024) ........................ 29
Commc’ns Workers of Am. v. Beck,
487 U.S. 735 (1988)............................................ 6, 22
Cunningham v. Erie R.R.,
358 F.2d 640 (2d Cir. 1966) ............................... 6, 12
DelCostello v. Int’l Bhd. of Teamsters,
462 U.S. 151 (1983)................................................ 26
Ellis v. Bhd. of Ry., Airline and S.S. Clerks,
466 U.S. 435 (1984)................... 5, 6, 9, 11-14, 17, 18
22, 32, 33
Felter v. S. Pac. Co.,
359 U.S. 326 (1959).......................................... 10, 16
Ford Motor Co. v. Huffman,
345 U.S. 330 (1953).......................................... 26, 30
Franks v. Bowman Transp. Co.,
424 U.S. 747 (1976)................................................ 32
Furniture Workers Loc. 282 (Davis Co.),
291 N.L.R.B. 182 (1988) ........................................ 27
Griffin v. Oceanic Contractors, Inc.,
458 U.S. 564 (1982)................................................ 14
Harris v. Quinn,
573 U.S. 616 (2014).................................. 5, 9, 17, 33
ix
TABLE OF AUTHORITIES--Continued
Cases
Page(s)
Harrison v. United Transp. Union,
530 F.2d 558 (4th Cir. 1975) ............................. 7, 26
Hughes Tool Co.,
104 N.L.R.B. 318 (1953) ........................................ 27
Int’l Ass’n of Machinists v. Street,
367 U.S. 740 (1961)....................... 5, 9, 10, 12-19, 22
30, 32, 33
Int’l Bhd. of Elec. Workers, Local No. 2088
(Lockheed Space Operations Co.),
302 N.L.R.B. 322 (1991) ........................................ 18
Janus v. AFSCME, Council 31,
585 U.S. 878 (2018)................................. 7, 27-29, 33
Jones v. Trans World Airlines, Inc.,
495 F.2d 790 (2d Cir. 1974) ........................... 6, 7, 25
Kaufman Dedell Printing, Inc.,
251 N.L.R.B. 78 (1980) .......................................... 26
Kidwell v. Transp. Commc’ns Int’l Union,
946 F.2d 283 (4th Cir. 1991) ................................. 21
Lorance v. AT&T Techs.,
490 U.S. 900 (1989)................................................ 32
Machinists Local 697 (Canfield Rubber Co.),
223 N.L.R.B. 832 (1976) ........................................ 27
Marquez v. Screen Actors Guild, Inc.,
525 U.S. 33 (1998).................................................. 18
x
TABLE OF AUTHORITIES--Continued
Cases
Page(s)
Narragansett Rest. Corp.,
243 N.L.R.B. 125 (1979) ........................................ 26
NLRB v. Gaynor News Co.,
197 F.2d 719 (2d Cir. 1952) ............................. 17, 29
NLRB v. Gen. Motors Corp.,
373 U.S. 734 (1963).................................... 18, 19, 25
Pattern Makers’ League v. NLRB,
473 U.S. 95 (1985)............................................ 20, 21
Prestige Bedding Co.,
212 N.L.R.B. 690 (1974) ........................................ 26
Pro. Ass’n of Golf Offs.,
317 N.L.R.B. 774 (1995) ........................................ 12
Puerto Rico v. Franklin Cal. Tax-Free Trust,
579 U.S. 115 (2016).......................................... 14, 19
Radio Officers’ Union v. NLRB,
347 U.S. 17 (1954)................... 5, 6, 11, 12, 16-18, 22
24, 25, 29, 32
Ry. Emps.’ Dep’t v. Hanson,
351 U.S. 225 (1956).......................................... 15, 16
Rakestraw v. United Airlines, Inc.,
981 F.2d 1524 (7th Cir. 1992) ............... 7, 25, 26, 32
Rockaway News Supply Co.,
94 N.L.R.B. 1056 (1951) ........................................ 26
Roscello v. Sw. Airlines Co.,
726 F.2d 217 (5th Cir. 1984) ................................. 26
xi
TABLE OF AUTHORITIES--Continued
Cases
Page(s)
Shea v. Int’l Ass’n of Machinists,
154 F.3d 508 (5th Cir. 1998) ....................... 6, 12, 22
Steele v. Louisville & N.R. Co.,
323 U.S. 192 (1944).................... i, 6, 7, 24, 27-29, 33
Sullivan v. Stroop,
496 U.S. 478 (1990)................................................ 19
Teamsters Loc. Union No. 42 v. NLRB,
825 F.2d 608 (1st Cir. 1987) .............................. 7, 26
Tenn. Valley Auth. v. Hill,
437 U.S. 153 (1978)................................................ 14
Tex. & N.O.R. Co. v Bhd. of Ry. & S.S. Clerks,
281 U.S. 548 (1930)................................................ 20
United States v. Johnson,
529 U.S. 53 (2000).................................................. 14
United Steelworkers of Am. v. Rawson,
495 U.S. 362 (1990)................................................ 30
Vaca v. Sipes,
386 U.S. 171 (1967)................................ 7, 27, 28, 33
Virginian Ry. Co. v. Sys. Fed’n No. 40,
300 U.S. 515 (1937)................................................ 27
Wightman v. Springfield Terminal Ry.,
100 F.3d 228 (1st Cir. 1996) .................................. 12
Statutes
28 U.S.C. § 1254(1) ..................................................... 1
28 U.S.C. § 1331 ......................................................... 3
xii
TABLE OF AUTHORITIES--Continued
Page(s)
National Labor Relations Act
29 U.S.C. § 151 et seq............................................... 6
29 U.S.C. § 157 ...................................................... 23
29 U.S.C. § 158(a)(1) .............................................. 23
29 U.S.C. § 158(a)(3) ........................ 6, 11, 22, 23, 31
Railway Labor Act
45 U.S.C § 151 et seq. .............................................. 5
45 U.S.C § 151a(2) ............................................. 5, 23
45 U.S.C. § 152 (Fourth)................. i, 1, 3-5, 8-19, 22
23, 33
45 U.S.C. § 152 (Fifth) ............................... 11, 13, 16
45 U.S.C. § 152 (Ninth) ......................................... 27
45 U.S.C. § 152 (Eleventh) ...........1, 9, 11, 13, 22, 33
45 U.S.C. § 152 (Eleventh) (a) ... i, 1, 3-6, 8-15, 17-19
21-24, 31, 33
45 U.S.C. § 152 (Eleventh) (d) ............... 3, 10, 11, 14
45 U.S.C. §§ 181-188................................................ 5
Act of Jan. 10, 1951, Ch. 1220,
64 Stat. 1238, S. 3295, Pub. L. No. 914 ................ 9
Rules
Supreme Court Rules
Rule 13.3 .................................................................. 1
Rule 14.1(b)(ii) ......................................................... ii
Rule 29.6 .................................................................. ii
xiii
TABLE OF AUTHORITIES--Continued
Page(s)
Other
Black’s Law Dictionary (11th ed. 2019) ................ 20
Data USA, Air Transportation Occupations
Distribution (2022) ........................................... 31
Data USA, Rail Transportation Occupations
Distribution (2022) ........................................... 31
U.S. Bureau of Labor Statistics,
Air Transportation: NAICS 481,
Employment by Occupation (2024) .................. 31
U.S. Bureau of Labor Statistics,
Rail Transportation: NAICS 482,
Employment by Occupation (2024) .................. 31
1
OPINIONS BELOW
The court of appeals opinion (Pet.App.1a-14a) is
reported at 122 F.4th 1155 (9th Cir. 2024). The unreported district court opinion (Pet.App.15a-30a) is published at 2023 U.S. Dist. LEXIS 139510, and 2023 WL
5152641 (D. Nev. Aug. 9, 2023).
JURISDICTION
The court of appeals issued its opinion on December 10, 2024. Pet.App.1a-14a. Petitioner timely filed a
petition for rehearing en banc, which the court denied
on January 22, 2025. Pet.App.33a. This petition is
timely under Supreme Court Rule 13.3. This Court
has jurisdiction under 28 U.S.C. § 1254(1).
STATUTORY PROVISIONS
This case involves the Railway Labor Act (“RLA”),
45 U.S.C. § 152 (Fourth) and (Eleventh), which are reproduced at Pet.App.34a-37a.
STATEMENT OF THE CASE
This case presents the question of whether a union
and employer violate RLA §§ 2, Fourth & Eleventh (a)
by requiring employees to financially support the union or suffer the penalty of losing contractual seniority
benefits and work bidding privileges. This case also
presents the question of whether a union unlawfully
discriminates against non-members in violation of the
duty of fair representation (“DFR”) when it denies
those contractual benefits to non-member employees
it represents.
2
I. THE FACTS
In 2017, Respondents Allegiant Air, LLC (“Allegiant”) and Transport Workers Union of America Local
577 (“TWU”), executed what they titled a “union security” provision in Section 29 of their collective bargaining agreement (“Agency Fee Requirement”).
Pet.App.4a-5a, 15a-16a, 38a-39a. The Agency Fee Requirement required all flight attendants, including
Petitioner Ali Bahreman, to financially support the
union by paying agency fees, or lose their use of seniority for bidding on flight assignments, work schedules, and other employment benefits, all awarded in
order of seniority. Pet.App.4a-5a, 15a-17a, 38a-39a.
Bahreman was not a TWU member and did not financially support the union during his employment as
an Allegiant flight attendant. Pet.App.4a-5a, 16a-17a.
In 2019, Allegiant and TWU suspended Bahreman’s
bidding privileges for nonpayment of agency fees pursuant to their Agency Fee Requirement. Pet.App.5a,
17a, 38a-39a. Allegiant created Bahreman’s work
schedule last in seniority, and he lost the ability to
participate in any bidding that utilizes his seniority
for contract benefits. Pet.App.4a-5a, 16a-17a, 38a39a. Placing Bahreman at the bottom of the seniority
list prevented him from using his contractual seniority to bid on more lucrative flight assignments, obtain
valuable benefits to which he would have otherwise
been entitled, and plan his work schedule.
Pet.App.4a-6a, 16a-17a, 38a-39a.
3
II. THE PROCEEDINGS BELOW
On March 3, 2020, Bahreman sued TWU and Allegiant in the U.S. District Court for the District of Nevada. Pet.App.15a-17a, 19a. Bahreman asserted that
TWU and Allegiant’s Agency Fee Requirement violated the RLA because it unlawfully coerced him to
pay agency fees in contravention of § 2, Fourth and
failed to conform to Congress’s sole exception for “union security” requirements in § 2, Eleventh (a).
Pet.App.19a-28a. Bahreman also asserted that the
Requirement discriminated against non-members of
the union in violation of the DFR. Pet.App.19a, 28a29a. Bahreman sought, inter alia, compensatory damages resulting from the revocation of his bidding privileges. Pet.App.5a, 15a-17a, 19a. The District Court
had jurisdiction under 28 U.S.C. § 1331 because Bahreman claimed violations of federal law.
On August 9, 2023, the District Court granted
TWU’s and Allegiant’s summary judgment motions
and denied Bahreman’s motion. Pet.App.15a-17a,
29a-30a. The District Court agreed that TWU and Allegiant’s Agency Fee Requirement was not a § 2, Eleventh (a) “union security” agreement because it did not
provide for termination as the consequence of not paying agency fees. Pet.App.19a-21a. Bahreman had argued § 2, Eleventh (a) is the only exception to § 2,
Fourth’s general agency fee prohibition. 45 U.S.C §
152 (Eleventh) (d); Pet.App.19a, 21a, 37a. Nonetheless, the court ruled that the Requirement did not violate § 2, Fourth. Pet.App.26a-28a.
The District Court also found that TWU did not violate the DFR by negotiating and enforcing the
4
Agency Fee Requirement. Pet.App.28a-29a. The District Court entered judgment in favor of Allegiant and
TWU on August 31, 2023, and dismissed the case.
Pet.App.31a-32a.
Bahreman timely appealed. Pet.App.6a. The Ninth
Circuit affirmed the District Court’s decision on December 10, 2024. Pet.App.14a. The court of appeals
agreed that the Agency Fee Requirement was not a §
2, Eleventh (a) “union security” agreement.
Pet.App.9a, 12a. Yet it also held that the Requirement
did not violate § 2, Fourth because, it said, that section
only prohibits coercing and influencing employees to
join the union and does not prohibit coercing and influencing non-members to pay agency fees.
Pet.App.9a-11a. The court of appeals further held that
compelling employees to financially support a union
or lose their seniority benefits and work bidding privileges is not coercive. Pet.App.9a-10a.
Finally, the Ninth Circuit decided that TWU did
not violate the DFR because it believed that the
Agency Fee Requirement treated union members and
non-members the same. Pet.App.13a-14a. Bahreman
timely filed a petition for rehearing en banc, which the
Ninth Circuit denied on January 22, 2025.
Pet.App.33a.
5
REASONS FOR GRANTING THE PETITION
The Railway Labor Act, 45 U.S.C. § 151 et seq., prohibits union membership and agency fee requirements in § 2, Fourth. 45 U.S.C. § 152 (Fourth);
Pet.App.34a. See Int’l Ass’n of Machinists v. Street,
367 U.S. 740, 750, 767-68 (1961); Ellis v. Bhd. of Ry.,
Airline and S.S. Clerks, 466 U.S. 435, 448 (1984); Harris v. Quinn, 573 U.S. 616, 628 (2014). Congress authorized one limited exception in § 2 Eleventh (a) for
“union security” agreements that require employees
to pay agency fees “as a condition of continued employment.” 45 U.S.C. § 152 (Eleventh) (a); Pet.App.35a37a.1 Congress enacted broad statutory protections for
non-member employees’ associational freedoms, prohibiting “any limitation upon [their] freedom of association[.]” 45 U.S.C. § 151a(2) (emphasis added).
The Ninth Circuit erroneously held that the RLA
does not require unions and employers to execute a §
2, Eleventh (a) “union security” agreement in order to
override § 2, Fourth’s general agency fee prohibition.
Pet.App.11a-13a. The Ninth Circuit’s decision effectively abolishes Congress’s general agency fee prohibition from the statute, holding, contrary to Supreme
Court precedent, that nothing in the statute, not even
§ 2, Fourth, restricts a union and employer’s powers
to use the “collective bargaining process” to coerce
non-members and other employees to financially support a union. See Street, 367 U.S. at 767-68; Ellis, 466
U.S. at 447-48; Harris, 573 U.S. at 628; see also Radio
1 Congress extended the RLA to cover the airline industry in
45 U.S.C. §§ 181-188.
6
Officers’ Union v. NLRB, 347 U.S. 17, 41-42 (1954);
Pet.App.9a-13a.
The Ninth Circuit’s decision also creates a circuit
split with Second, Third, and Fifth Circuit precedent.
See Cunningham v. Erie R.R., 358 F.2d 640, 645 (2d
Cir. 1966); Brady v. Trans World Airlines, Inc., 401
F.2d 87, 102 (3d Cir. 1968); Shea v. Int’l Ass’n of Machinists, 154 F.3d 508, 512 (5th Cir. 1998).
The Ninth Circuit dismantles the RLA’s robust association protections for employees working in the airline and railroad industries. It also threatens the freedoms of all private sector employees nationwide covered by the National Labor Relations Act (“NLRA”),
29 U.S.C § 151 et seq., because RLA § 2, Eleventh (a)
and NLRA § 8(a)(3), 29 U.S.C. § 158(a)3), are “statutory equivalent[s].” See Commc’ns Workers of Am. v.
Beck, 487 U.S. 735, 745-46 (1988) (quoting Ellis, 466
U.S. at 452 n.13).
Moreover, the Ninth Circuit erroneously held
that the DFR does not prohibit a union from denying
contractual seniority benefits to non-members who refuse to financially support it. Pet.App.13a-14a. The
Ninth Circuit’s holding contravenes well-established
Supreme Court and NLRB DFR precedent, and in doing so, completely unravels DFR protections for all
RLA and NLRA-covered private sector workers. Steele
v. Louisville & N.R. Co., 323 U.S. 192, 204 (1944).
The Ninth Circuit’s decision also creates a circuit
split with the First, Second, Fourth, Seventh, and
Tenth Circuit courts of appeal, whose decisions recognize that a union’s protection or advancement of its
own interests over an employee’s contractual or seniority benefits violates basic DFR principles. See Jones
7
v. Trans World Airlines, Inc., 495 F.2d 790, 797 (2d
Cir. 1974); Rakestraw v. United Airlines, Inc., 981
F.2d 1524, 1535 (7th Cir. 1992); Teamsters Loc. Union
No. 42 v. NLRB, 825 F.2d 608, 613 (1st Cir. 1987);
Aguinaga v. UFCW, 993 F.2d 1463, 1471 (10th Cir.
1993); Bennett v. Loc. Union No. 66, 958 F.2d 1429,
1437-38 (7th Cir. 1992); Harrison v. United Transp.
Union, 530 F.2d 558, 561-62 (4th Cir. 1975).
This Court has long warned that “serious constitutional questions” would arise if the DFR could no
longer function as the “bulwark” to Congress’s exclusive representation scheme. See Janus v. AFSCME,
Council 31, 585 U.S. 878, 901 (2018); Vaca v. Sipes,
386 U.S. 171, 182 (1967); Steele, 323 U.S. at 204. Under the Ninth Circuit’s severely diminished DFR, the
“necessary concomitant” of unions’ government-conferred exclusive representation power is absent, and
government action depriving non-members of their
freedom to negotiate their own workplace benefits is
unconstitutional. Janus, 585 U.S. at 901.
This Court should grant Bahreman’s petition and
decide the RLA and DFR issues presented in this case.
8
I. The Court should grant Bahreman’s petition
because the Ninth Circuit’s decision is contrary to Supreme Court and circuit court
RLA precedent.
A. The Ninth Circuit’s decision dismantles
Congress’s § 2, Fourth general agency fee
prohibition and the narrow § 2, Eleventh
(a) exception.
1. The Ninth Circuit’s decision dismantles Congress’s § 2, Fourth agency fee prohibition and transforms the sole, narrow § 2, Eleventh (a) “union security” exception into a general statutory “collective bargaining” power for unions and employers to impose
any agency fee requirements on employees, free from
Congress’s conditions and limitations. Pet.App.11a13a.
The Ninth Circuit held that the RLA’s “collectivebargaining process” broadly authorizes unions and
carriers to adopt any contract provisions “for the pay,
rules, and working conditions that [they] want,” including agency fee requirements that do not conform
to Congress’s requirements in § 2, Eleventh (a) and
violate § 2, Fourth. Pet.App.12a-13a.
That decision unwinds the clock on nearly 100
years of Supreme Court precedent and statutory history governing Congress’s RLA regulatory framework.
From its creation until Congress’s 1951 amendments,
the RLA completely prohibited unions from imposing
any union membership or agency fee requirements on
employees. The RLA, “[a]s originally enacted in 1926
… did not permit a collective-bargaining agreement to
require employees to join or make any payments to a
9
union.” Harris, 573 U.S. at 628 (citing Street, 367 U.S.
at 750).
In 1934, Congress codified the RLA’s complete ban
of union membership and agency fee requirements in
§ 2, Fourth, which states that “it shall be unlawful …
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); Pet.App.34a.
Congress later enacted the § 2, Eleventh proviso
as the sole, limited exception to § 2, Fourth’s complete
prohibition of union membership and fee requirements. Congress expressly declared in doing so that
its purpose was “to authorize agreements providing
for union membership … under certain conditions.”
Act of Jan. 10, 1951, Ch. 1220, 64 Stat. 1238, S. 3295,
Pub. L. No. 914 (emphasis added). Congress’s § 2,
Eleventh (a) exception to § 2, Fourth states that a union and employer “shall be permitted … to make
agreements, requiring, as a condition of continued employment, that … all employees shall become [union]
members[.]” 45 U.S.C. § 152 (Eleventh) (a) (emphasis
added); Pet.App.35a.2
This Court recognized that “it is abundantly clear
that Congress,” by enacting the § 2, Eleventh (a) exception to § 2, Fourth, “did not completely abandon the
policy of full freedom of choice embodied in the 1934
Act,” i.e., § 2, Fourth’s general prohibition of union
2 This Court has interpreted § 2, Eleventh (a)’s “membership”
requirement to mean that employees must either acquire formal
membership in a union or pay the union agency fees, or face discharge from employment. Ellis, 466 U.S. at 439.
10
membership and agency fee requirements. Street, 367
U.S. at 767. Rather, § 2, Eleventh (a) made only “limited” inroads on § 2, Fourth’s prohibitions. Id.; see also
Felter v. S. Pac. Co., 359 U.S. 326, 331 (1959) (recognizing that with the 1951 amendment it became lawful to bargain for “union security” arrangements, but
the power was subject to limitations) (citing 45 U.S.C.
§§ 152 (Fourth) & (Eleventh) (d)); Pet.App.34a, 37a.
This Court has also recognized that Congress, in §
2, Eleventh (a), “did not give a blanket approval to union-shop agreements,” but “[i]nstead it enacted a precise and carefully drawn limitation on the kind of union-shop agreements which might be made.” Street,
367 U.S. at 767-68 (cleaned up).
Following Congress’s 1951 amendment the only
lawful agency fee requirements under the RLA are
those that § 2, Eleventh (a) specifically authorizes—
those that are made “a condition of continued employment,” i.e., are enforced by termination of employment, not a loss of contract benefits or bidding privileges. Thus, an agency fee requirement that is not a §
2, Eleventh (a) “union security” agreement violates §
2, Fourth’s complete prohibition of union membership
and fee requirements.
The Ninth Circuit deviated from Court precedent
by finding that TWU and Allegiant’s Agency Fee Requirement was not a § 2, Eleventh (a) agreement, but
then holding the Requirement did not violate § 2,
Fourth’s complete prohibition of compulsory agency
fees. Pet.App.9a, 12a.
2. The Ninth Circuit erroneously held that neither
Supreme Court precedent nor the RLA requires un-
11
ions and employers to execute a § 2, Eleventh (a) “union security” agreement to override § 2, Fourth’s general agency fee prohibition. Pet.App.12a-13a.
In Ellis, the Court explained that § 2, Eleventh (a)
allows a union and employer to negotiate a contract
“requiring all employees to become members of or to
make contributions to the union.” 466 U.S. at 448. But
such “obligatory payments” must be “required by a
contract authorized by § 2, Eleventh,” and “[u]ntil
such a contract is executed, no dues or fees may be
collected from objecting employees who are not members of the union.” Id.
Ellis’s conclusion is mandated by the RLA’s statutory text. § 2, Eleventh (d) states: “Any provisions in
paragraphs Fourth and Fifth of this section in conflict
herewith are to the extent of such conflict amended.”
45 U.S.C. § 152 Eleventh (d); Pet.App.37a. Congress’s
limited amendment of § 2, Fourth’s general agency fee
prohibition “to the extent of such conflict” with § 2,
Eleventh (a) means that it prevented unions and employers from overriding § 2, Fourth’s agency fee prohibition unless and until they execute the “union security” agreement that Congress authorized in § 2, Eleventh (a).
The Ninth Circuit’s holding that unions need not
execute the congressionally authorized “union security” agreement before compelling employees to pay
agency fees deviates from the basic federal labor law
principle that unions can never force non-members to
pay fees in the absence of a congressionally authorized
“union security” agreement that is enforced by termination. Ellis, 466 U.S. at 448; Radio Officers, 347 U.S.
at 26-27 (holding that NLRA § 8(a)(3) prohibits such
12
requirements); Pro. Ass’n of Golf Offs., 317 N.L.R.B.
774, 777 (1995) (NLRB).
The Ninth Circuit’s holding that the RLA’s “collective bargaining process” gives unions and employers
plenary power to impose any agency fee requirements
and penalties they want, directly conflicts with Street
and Ellis’s decisions that such unrestricted power violates §§ 2, Fourth & Eleventh (a). Pet.App.12a-13a.
Unions and employers cannot make contractual
agreements or requirements that violate the RLA’s
“legislative pronouncement[s].” Wightman v. Springfield Terminal Ry., 100 F.3d 228, 232 (1st Cir. 1996)
(citations omitted). The Ninth Circuit held that an
agency fee requirement that strips employees of their
seniority benefits for refusing to financially support
the union “does not contradict the [RLA’s] text.”
Pet.App.12a. But indeed, such a requirement simultaneously violates § 2, Fourth’s agency fee prohibition
and, by the court’s own admission, does not fall within
Congress’s sole exception in § 2, Eleventh (a) for “union security” agreements requiring non-members to
pay agency fees “as a condition of continued employment.” 45 U.S.C. §§ 152 (Fourth) & (Eleventh) (a);
Pet.App.34a-35a.
3. The Ninth Circuit’s holding also conflicts with
Second, Third, and Fifth Circuit precedent recognizing that § 2, Eleventh (a) is an exception to the RLA’s
general prohibition of compulsory union membership
and financial support in all forms. See Cunningham,
358 F.2d at 645 (recognizing that a union is liable under § 2, Fourth when Eleventh (a) “is no longer available as a defense”); Brady, 401 F.2d at 102; Shea, 154
F.3d at 512. Until the Ninth Circuit’s decision, every
13
other appellate court to have decided the issue has
recognized that § 2, Eleventh (a)’s “union security”
agreement authorization is the sole, limited exception
to § 2, Fourth’s general prohibition of compulsory unionism.
The conflict with the Third Circuit’s decision in
Brady is the most glaring. The Third Circuit recognized that “[RLA] 2 (Eleventh), which permits union
shop agreements within prescribed limits, was intended as a proviso [and “exception”] to section 2
(Fourth) (Fifth), which prohibited all employer conduct designed to influence or coerce employees to join
or maintain membership in a labor organization.”
Brady, 401 F.2d at 95. The Third Circuit correctly
held that the penalty for non-payment of union dues
and fees must fall within the § 2, Eleventh (a) exception, or it violates § 2, Fourth. Id. at 98.
B. The Ninth Circuit’s decision that the RLA
does not restrict union agency fee requirements is contrary to Supreme Court precedent and violates separation of powers
principles.
1. The Ninth Circuit held that the § 2, Eleventh (a)
exception “does not by its terms prohibit carriers and
unions from reaching collective bargaining agreements other than those it explicitly permits, including
agency-shop agreements.” Pet.App.12a (citations
omitted).3 The Ninth Circuit defied the RLA’s text by
3 The Ninth Circuit inverts Street and Ellis, citing them to
justify its holding that nothing in the RLA prohibits unions from
compelling non-members to financially support the union.
14
holding that the § 2, Eleventh (a) exception does not
restrict agency fee requirements, notwithstanding
Congress’s limitations and conditions provided in the
exception. Pet.App.11a-13a, 35a; 45 U.S.C. § 152
(Eleventh) (a).
“When Congress provides exceptions in a statute,
it does not follow that courts have authority to create
others. The proper inference … is that Congress considered the issue of exceptions and … limited the statute to the ones set forth.” United States v. Johnson,
529 U.S. 53, 58 (2000); Tenn. Valley Auth. v. Hill, 437
U.S. 153, 188 (1978). Nothing in § 2, Eleventh (a)’s
text permits any exceptions to § 2, Fourth other than
“union security” agreements requiring agency fee payments “as a condition of continued employment[.]” 45
U.S.C. § 152 (Eleventh) (a), (d) (emphasis added);
Pet.App.35a, 37a. When the text expresses Congress’s
intent “in reasonably plain terms, that language must
ordinarily be regarded as conclusive.” Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 570 (1982)
(cleaned up); accord Puerto Rico v. Franklin Cal. TaxFree Trust, 579 U.S. 115, 125-26 (2016).
The Ninth Circuit’s decision violates separation of
powers principles. “[O]nly the words on the page constitute the law adopted by Congress and approved by
the President.” Bostock v. Clayton Cnty., 590 U.S. 644,
654 (2020). And “[i]f judges could add to, remodel, update, or detract from old statutory terms inspired only
by extratextual sources and [their] own imaginations,
Pet.App.12a (citing Street, 367 U.S. at 766-67; Ellis, 466 U.S. at
438-39). But Street and Ellis refute that proposition, showing
that the exact opposite is true. See supra at 9-12.
15
[they] would risk amending statutes outside the legislative process reserved for the people’s representatives.” Id. at 654-55. This would “deny the people the
right to continue relying on the original meaning of
the law they have counted on to settle their rights and
obligations.” Id. at 655 (citation omitted). The Ninth
Circuit re-wrote the RLA’s regulatory framework in §§
2, Eleventh (a) & Fourth, thereby intruding into Congress’s exclusive province to make the laws.
2. The Ninth Circuit decided that taking away nonmember employees’ contractual benefits as a penalty
for nonpayment of agency fees is consistent with § 2,
Eleventh (a)’s “anti-free rider” purpose. Pet.App.12a.
But that is also wrong. The Ninth Circuit re-writes
Street and Railway Employees’ Department v. Hanson,
351 U.S. 225 (1956), which emphasized that Congress’s purpose in Eleventh (a) was “the elimination”
of “free riders” from the bargaining unit through termination of employment, not authorizing the exclusive union representative to engage in other coercion
and discrimination against employees who remain in
the bargaining unit. Street, 367 U.S. at 761 (emphasis
added); id. at 763-64 (recognizing that Congress decided “to require, rather than to induce, the beneficiaries of trade unionism to contribute to its costs[.]”
(quoting Hanson, 351 U.S. at 235)).
§ 2, Eleventh (a) protects non-members’ freedoms
by restricting a union’s power to coerce financial support. As Street recognized, “[t]he obvious purpose of
[Congress’s] careful prescription [in § 2, Eleventh (a)]
was to strike a balance between” union security interests and “the claims of the individual to be free of arbitrary or unreasonable restrictions resulting from
16
compulsory unionism.” 367 U.S. at 767-68 (cleaned
up).
The Ninth Circuit’s re-tailored scheme alters and
undermines Congress’s legislative design by allowing
unions to engage in coercion and discrimination that
sacrifices the benefits of minority employees who remain in the bargaining unit and continue to be subject
to the union’s exclusive representation power. This is
a clear violation of this Court’s holding that “union security” agreements may permit discharging nonmembers for not paying union agency fees, but “[n]o
other discrimination aimed at encouraging employees
to join, retain membership, or stay in good standing in
a union is condoned.” Radio Officers, 347 U.S. at 4142.
C. The Ninth Circuit’s decision is contrary
to Supreme Court and circuit court precedent establishing that unauthorized
agency fee requirements coerce and influence non-members in violation of § 2,
Fourth.
1. The Ninth Circuit erroneously decided that § 2,
Fourth’s prohibition of coercion and influence to join a
union does not prohibit unions from requiring nonmembers to pay agency fees. Pet.App.9a-10a. The
lower court’s decision contradicts and undermines
nearly 70 years of Supreme Court precedent recognizing that § 2, Fourth banned all union membership and
agency fee requirements. Hanson, 351 U.S. at 231 (citing 45 U.S.C §§ 152 (Fourth) & (Fifth)) (other citations
omitted); Felter, 359 U.S. at 330-31; Street, 367 U.S.
at 750-64 (recognizing that Congress had to enact the
§ 2, Eleventh (a) exception to § 2, Fourth to permit
17
agency fees under limited conditions); Harris, 573
U.S. at 628; see also supra at 8-12. And, Ellis recognized that § 2, Fourth prohibits a union and employer’s agency fee requirements (i.e., “obligatory” fee
payments) without their execution of a § 2, Eleventh
(a) agreement. 466 U.S. at 447-48; supra at 10-12.
2. The Ninth Circuit’s decision also conflicts with
well-established Supreme Court and circuit court
precedent holding that coercing an employee to pay
agency fees is coercion to join a union. The “normal
effect” of a union’s requirement to pay dues and fees
is “to encourage nonmembers to join the Union, as
well as members to retain their good standing in the
Union, a potent organization whose assistance is to be
sought and whose opposition is to be avoided.” Radio
Officers, 347 U.S. at 27 (quoting the NLRB trial examiner).
Coercion and influence to financially support a union is “inherently conducive to increased union membership” and “‘encourages’ union membership, by increasing the number of workers who would like to join
and/or their quantum of desire.” Id. at 38 (cleaned up)
(quoting and affirming NLRB v. Gaynor News Co., 197
F.2d 719, 722 (2d Cir. 1952)); Brady, 401 F.2d at 101
(finding that penalties “for failure to comply with the
union’s dues demands inherently encourage[] other
employees to promptly comply with union ‘membership’ requirements”) (emphasis in original); see also 45
U.S.C. § 152 (Fourth) (prohibiting any coercion or influence “in an effort to induce [employees] to join or
18
remain … members of any [union]”) (emphasis added);
Pet.App.34a.4
RLA § 2, Fourth’s union shop prohibition naturally
encompasses the agency shop prohibition. This Court
has long recognized that “union shop” requirements,
which coerce non-members to join the union, are the
practical equivalent of “agency shop” requirements
that coerce employees to pay union agency fees. See Ellis, 466 U.S. at 452 n.13 (citing NLRB v. Gen. Motors
Corp., 373 U.S. 734 (1963)). “Membership” is “a legal
term of art” that “incorporates all of the [statutory] refinements,” including this Court’s decisions defining
membership’s meaning to include a non-member’s
agency fee payments. Marquez v. Screen Actors Guild,
Inc., 525 U.S. 33, 47 (1998); Gen. Motors Corp., 373
U.S. at 742 (holding that union membership’s meaning is “whittled down to its financial core”) (citing Radio Officers, 347 U.S. at 41); Ellis, 466 U.S. at 452 n.13
(citation omitted); accord Street, 367 U.S. at 762-70.
The Ninth Circuit failed to heed this Court’s guidance that proper statutory construction requires reading § 2, Fourth’s prohibition of coercion to “join the union” consistently with the § 2, Eleventh (a) exception’s
4 The Ninth Circuit’s decision also conflicts with and disrupts
well-established NLRB precedent governing millions of private
sector workers nationwide. Where Congress has given employees
the right not to join or assist labor organizations, as it did under
both RLA § 2, Fourth and NLRA Section 7, “it can hardly be disputed” that Congress protected both the right not to belong to a
union and the right not to “contribut[e] money to it.” Int’l Bhd. of
Elec. Workers, Local No. 2088 (Lockheed Space Operations Co.),
302 N.L.R.B. 322, 327 (1991).
19
requirement “to become members of the labor organization,” which the Court has defined to mean making
agency fee payments. Id.; accord Gen. Motors Corp.,
373 U.S. at 742; Puerto Rico, 579 U.S. at 125-26; Sullivan v. Stroop, 496 U.S. 478, 484 (1990). The statutory meaning of “to join the union” in § 2, Fourth, and
“to become members of the labor organization” in § 2,
Eleventh (a) is the same and each encompass “to make
agency fee payments” within their meaning.
3. The Ninth Circuit held that contractual requirements for all employees to pay agency fees or lose their
seniority benefits do not unlawfully coerce financial
support for the union in violation of § 2, Fourth.
Pet.App.9a-10a. That holding contravenes this
Court’s decisions that any union agency fee requirements imposed without the congressionally authorized § 2, Eleventh (a) “union security” agreement are
unlawful coercion. See supra at 8-12.5
The Ninth Circuit’s holding that unions and employers can force employees to pay agency fees or lose
contractual seniority benefits also derails this Court’s
RLA precedent defining what constitutes unlawful coercion and influence. “The intent of Congress is clear
5 The Ninth Circuit held that “requiring agency fees does not
incentivize union membership because, under the Agreement,
those fees cannot exceed union dues.” Pet.App.9a. The Ninth Circuit incorrectly reasoned: “Because it would cost Bahreman less
to pay agency fees than to pay union dues, there is no financial
inducement to join the Union.” Id. at 9a-10a. But the § 2, Fourth
anti-coercion provision prohibits requiring non-members to pay
any agency fees against their will without a congressionally authorized § 2, Eleventh (a) agreement because any such requirement is inherently coercive. See supra at 16-18.
20
with respect to the sort of conduct that is prohibited
… ‘coercion’ refer[s] to [a] well-understood concept[] of
law.” Tex. & N.O.R. Co. v Bhd. of Ry. & S.S. Clerks,
281 U.S. 548, 568 (1930). Black’s Law Dictionary
(11th ed. 2019) defines coercion as “[c]ompulsion of a
free agent by physical, moral, or economic force or
threat of physical force.” Id. And “the word ‘influence’
… ‘means pressure, the use of the authority or power
of either party to induce action by the other … [t]he
phrase covers the abuse of relation or opportunity so
as to corrupt or override the will.” Tex. & N.O.R. Co.,
281 U.S. at 568 (internal citation omitted). The Ninth
Circuit’s decision that a union may force non-members to choose between exercising their statutory
rights and receiving their contractual benefits conflicts with this Court’s definitions of RLA-prohibited
coercion and influence.
The Ninth Circuit further held that contractual requirements for all employees to financially support
the union or lose their seniority benefits treat nonmembers the same as union members. Pet.App.9a10a. That holding also conflicts with well-established
Supreme Court and Fourth Circuit precedent showing
that requiring non-members to financially support a
union involuntarily, and contrary to their exercise of
statutory speech and association rights, constitutes
unlawful coercion.
Union members voluntarily join the union and
agree to pay all dues and fees as part of their membership obligations, irrespective of the collective bargaining agreement’s “union security” (i.e., agency fee) requirements. See Pattern Makers’ League v. NLRB, 473
U.S. 95, 102-107 (1985). These union members are not
21
being coerced to financially support a union against
their will by any contractual agency fee requirement—they voluntarily agreed to do it. As the Fourth
Circuit said in Kidwell v. Transportation Communications International Union, 946 F.2d 283, 292-93 (4th
Cir. 1991): “Where the employee has a choice of union
membership and the employee chooses to join” and
pay dues and fees “the union membership money is
not coerced. The employee is a union member voluntarily.” Id. at 293.
In contrast to union members, non-members do not
consent to join a union or assume its financial obligations, and are not subject to any of those obligations
in the absence of a § 2, Eleventh (a) “union security”
agreement. Pattern Makers, 473 U.S. at 102-103, 104105. Non-members of a union are “those employees
who, in the absence of [union security] arrangements,
would prefer not to be involved at all with the union[.]”
Kidwell, 946 F.2d at 293.
The Ninth Circuit’s decision allows unions to coerce non-members under the false pretense that it is
“equal” treatment to require both members and nonmembers to comply with union rules and financial
membership obligations. But union members are not
required to do those things; they voluntarily agree to
them. Non-members’ choices are coerced and discriminated against. Compelling non-members to involuntarily pay union fees or lose their seniority benefits restrains them from freely exercising their RLA-protected rights not to join or financially support the union. That does not treat them the same as union members, who are allowed to freely exercise their association rights and keep their seniority. That unlawfully
22
coerces and influences non-members in violation of §
2, Fourth.
4. The Ninth Circuit’s decision is also directly contrary to Radio Officers, which struck down an identical seniority-based scheme under the NLRA. 347 U.S.
at 25-27, 41-42, 46. There the Court held that “union
security” schemes revoking employees’ seniority positions on a work assignment list for failing to pay union
dues and fees unlawfully coerces union members and
non-members to join and pay the union. Id. The Court
recognized that such requirements fall outside the
scope of Congress’s “union security” agreement authorization in NLRA § 8(a)(3). Id.
The Ninth Circuit refused to follow Radio Officers
because it is an NLRA case. Pet.App.10a-11a. But this
Court has held that NLRA § 8(a)(3) and RLA § 2, Eleventh (a) are “statutory equivalent[s].” Beck, 487 U.S.
at 745-46 (quoting Ellis, 466 U.S. at 452 n.13). Recognizing that Street “is far more than merely instructive
… it is controlling” with respect to NLRA § 8(a)(3), this
Court stated in Beck that “§ 8(a)(3) and § 2, Eleventh
are in all material respects identical.” 487 U.S. at 745
(footnote omitted); see also id. at 746 n.4, 756.6
The Ninth Circuit justified its refusal to apply this
directly “controlling” precedent because the RLA
6 This Ninth Circuit decision also conflicts with the Third
Circuit’s decision in Brady, which looked specifically to Radio Officers when evaluating whether union conduct amounts to coercion under § 2, Fourth. 401 F.2d at 101-02. The Fifth Circuit also
recognizes the Beck Court’s holding that “the union shop provisions of the NLRA and RLA have the same meaning.” Shea, 154
F.3d at 513-14.
23
“lacks the NLRA’s language prohibiting ‘discrimination in regard to … any term or condition of employment[.]” Pet.App.10a (quoting 29 U.S.C. § 158(a)(3)).
That is immaterial. Under both NLRA § 8(a)(3) and
RLA § 2, Eleventh (a), Congress only authorized “union security” requirements made as a condition of employment, and otherwise prohibited coercing and influencing employees to join or financially support the
union. 45 U.S.C. § 152 (Fourth); Pet.App.34a; 29
U.S.C. §§ 157, 158(a)(1), 158(b)(1). Additionally, the
RLA prohibits “any limitation upon freedom of association among employees.” 45 U.S.C. § 151a(2) (emphasis added). If anything, the RLA protects non-members’ associational freedoms even more broadly than
NLRA § 8(a)(3). This Court should grant the petition
and decide the first question presented.
24
II. The Court should grant Bahreman’s petition
because the Ninth Circuit’s decision unravels the duty of fair representation and is contrary to Supreme Court, circuit court, and
National Labor Relations Board precedent.
A. The Ninth Circuit’s decision unravels
duty of fair representation protections
by allowing unions to discriminatorily
deny contractual benefits to employees
who do not financially support them.
1. The Ninth Circuit’s decision unravels the DFR
and conflicts with this Court’s precedent by holding
that the union’s fiduciary duty allows it to discriminatorily deny non-member employees contractual seniority benefits and bidding privileges because they do
not financially support the union.7 Pet.App.13a-14a.
The DFR “require[s] the union, in collective bargaining and in making contracts with the carrier, to
represent non-union or minority union members of
the craft without hostile discrimination, fairly, impartially, and in good faith.” Steele, 323 U.S. at 204. Steele
held that the DFR places “constitutional limitations”
on the union’s “power to deny, restrict, destroy or discriminate against [non-members’] rights.” Id. at 198
(emphasis added). The Ninth Circuit’s holding violates the basic DFR principle that unions must not
7 As demonstrated in Section I, the RLA prohibits the union
from demanding agency fees from non-members without a congressionally authorized § 2, Eleventh (a) agreement requiring
the payment of fees “as a condition of continued employment.” 45
U.S.C. § 152 (Eleventh) (a) (emphasis added); Pet.App.35a; see
supra at 8-12; see also Radio Officers, 347 U.S. at 41-42.
25
discriminate against non-members in negotiating and
administering the collective bargaining agreement.
The Ninth Circuit held that denying contractual
benefits to non-members who do not pay agency fees
does not discriminate based on union membership.
Pet.App.13a-14a. But discriminating against employees who choose not to pay a union’s financial membership obligations is discrimination based on union
membership. Gen. Motors Corp., 373 U.S. at 742 (citing Radio Officers, 347 U.S. at 41) (recognizing that
the union membership requirement is “whittled down
to its financial core”); see supra at 17-18. As shown,
such agency fee requirements do not treat non-members, who choose not to financially support the union
in accordance with their statutory rights, the same as
voluntary union members. See supra at 20-22.
The Ninth Circuit allows unions, under the false
guise of “equal” treatment, to discriminate against
and punish non-members and other employees with
respect to their benefits, pay, and grievances, for their
failure to comply with internal union membership
rules, policies, and financial obligations, which union
members voluntarily assume.
2. The Ninth Circuit’s holding conflicts with Second Circuit precedent in Jones, 495 F.2d at 797, which
held that “[d]iscrimination in seniority based on nothing else but union membership is arbitrary and invidious and violates the union's duty to represent fairly
all members of the bargaining unit.” Id.; see also
Rakestraw, 981 F.2d at 1535 (recognizing that the
DFR prohibits unions from “juggl[ing] the seniority
roster for no reason other than to advance one group
of employees over another” but finding no breach in
26
that case); Barton Brands, Ltd. v. NLRB, 529 F.2d
793, 799 (7th Cir. 1976) (finding a DFR breach where
a union made seniority promises to advance the career
of union officials); Teamsters, 825 F.2d at 613 (finding
a DFR breach where the union assigned seniority
based on longevity in the union).
The Ninth Circuit’s holding also conflicts with
precedent from this Court and the Tenth, Seventh,
and Fourth Circuits recognizing that the DFR prohibits unions from sacrificing employee benefits and representation to protect or advance the union’s institutional interests. DelCostello v. Int’l Bhd. of Teamsters,
462 U.S. 151, 164 n.14 (1983); Aguinaga, 993 F.2d at
1471; Bennett, 958 F.2d at 1437-38; Harrison, 530
F.2d at 561-62. The lower court’s decision allows unions to sacrifice non-members’ contractual benefits to
bolster the union’s finances and membership rolls.
The Ninth Circuit’s decision also conflicts with and
disrupts well-established NLRB precedent governing
the same DFR that applies to RLA and NLRA private
sector employees. See Ford Motor Co. v. Huffman, 345
U.S. 330, 337 (1953); Roscello v. Sw. Airlines Co., 726
F.2d 217, 221 (5th Cir. 1984) (“[T]he union’s duty of
fair representation has been the same duty whether
the union involved is covered by the NLRA or the
RLA.”). It is a matter of hornbook law that the DFR
prohibits unions from unlawfully discriminating
against non-members over benefits, pay, and grievance processing. Rockaway News Supply Co., 94
N.L.R.B. 1056, 1058-59 (1951); Narragansett Rest.
Corp., 243 N.L.R.B. 125 (1979); see also Kaufman Dedell Printing, Inc., 251 N.L.R.B. 78, 80 (1980); Prestige
Bedding Co., 212 N.L.R.B. 690, 691 (1974); Hughes
27
Tool Co., 104 N.L.R.B. 318, 329 (1953); Machinists Local 697 (Canfield Rubber Co.), 223 N.L.R.B. 832, 835
(1976); American Postal Workers (U.S. Postal Service),
277 N.L.R.B. 541 (1985); Furniture Workers Loc. 282
(Davis Co.), 291 N.L.R.B. 182, 183 (1988). The Ninth
Circuit leaves this DFR precedent in disarray.
B. The Ninth Circuit’s decision raises serious constitutional questions regarding
the constitutionality of Congress’s exclusive representation scheme.
1. Having unraveled the DFR, the Ninth Circuit’s
decision allows unions to wield congressionally delegated exclusive representation power without the
DFR’s limitations. That raises “serious constitutional
questions” regarding exclusive representation’s constitutionality. Janus, 585 U.S. at 901.
Under RLA § 2, Ninth, Congress mandates that
employers must bargain with employees’ exclusive
union representative and no one else. See Virginian
Ry. Co. v. Sys. Fed’n No. 40, 300 U.S. 515, 548-49
(1937); 45 U.S.C. § 152 (Ninth). “[D]esignating a union
as the exclusive representative of nonmembers substantially restricts the nonmembers’ rights.” Janus,
585 U.S. at 901. Exclusive representation “deprive[s]”
the “minority members of a craft,” by congressional
statute, “the right, which they would otherwise possess, to choose a representative of their own, and its
members cannot bargain individually on behalf of
themselves.” Steele, 323 U.S. at 200 (citations omitted); see also Vaca, 386 U.S. at 182.
The DFR “is a necessary concomitant of the authority that a union seeks when it chooses to serve as
the exclusive representative of all the employees in a
28
unit.” Janus, 585 U.S. at 901; Vaca, 386 U.S. at 182
(recognizing that the DFR must be “a bulwark to prevent arbitrary union conduct against individuals
stripped of traditional forms of redress by the provisions of federal labor law”); Steele, 323 U.S. at 204.
The Ninth Circuit’s decision severely diminishes
the DFR and prevents the DFR from functioning as
the “bulwark” and “necessary concomitant” to Congress’s exclusive representation scheme. This Court
has recognized that “the congressional grant of power
to a union to act as exclusive bargaining representative, with its corresponding reduction in the individual rights of the employees so represented, would
raise grave constitutional problems if unions were free
to exercise this power” to discriminate against nonmembers who exercise their freedoms of association.
Vaca, 386 U.S. at 182; Steele, 323 U.S. at 198-99; accord Janus, 585 U.S. at 901; see also Air Line Pilots
Ass’n, Int’l v. O’Neill, 499 U.S. 65, 67, 76 (1991).
The Ninth Circuit’s decision allows unions, acting
under the color of congressionally-delegated exclusive
representation powers, to discriminate against nonmembers based on their statutorily-protected freedoms not to financially support or associate with the
union. See supra at 24-27. Furthermore, the decision
opens the door to other union abuses of exclusive representation powers, such as implementing lower salaries for non-members who do not financially support
the union or banning them from any overtime opportunities.
This Court has recognized that “[i]f the Railway
Labor Act purports to impose on [an employee] … the
legal duty to comply with the terms of a contract
29
whereby the representative has discriminatorily restricted their employment for the benefit and advantage of the [union’s] own members, [it] must decide
the constitutional questions[.]” Steele, 323 U.S. at 19899.
Without having the DFR as a shield to protect
them, Congress’s exclusive representation scheme
compels non-members to surrender to a discriminatory union contract and representation that targets
them with loss of seniority benefits, lower salaries, or
whatever other deprivation a union might imagine.
The Ninth Circuit’s DFR decision restrains nonmembers’ rights to associate with and speak through
representatives of their own choosing and from bargaining individually with their employer, Steele, 323
U.S. at 200, leaving non-members “with no means of
equalizing the situation[.]” Radio Officers, 347 U.S. at
37-38 (quoting Gaynor News Co., 197 F.2d at 722).
Thus, the Ninth Circuit transforms Congress’s exclusive representation scheme into a weapon for the
abridgement of employees’ speech and associational
activities. Id. at 198; see also Janus, 585 U.S. at 894;
Carbonell v. Lopez-Figueroa, 749 F. Supp. 3d 266, 28788, 289 (D.P.R. 2024); Brannian v. City of San Diego,
364 F. Supp. 2d 1187, 1194-97 (S.D. Cal. 2005).
2. The Ninth Circuit’s decision negates the DFR’s
“constitutional limitations” on the union’s power as
exclusive representative “to deny, restrict, destroy or
discriminate against [non-members’] rights.” Steele,
323 U.S. at 198. Justice Black presciently warned
years ago of the “parsimonious limitations on the kind
of decree the courts below can fashion in their efforts
30
to afford effective protection to these priceless constitutional rights.” Street, 367 U.S. at 797 (Black, J., dissenting).
Ever since this Court crafted the DFR to avoid
striking down exclusive representation, courts have
eroded the DFR’s effectiveness. See O’Neill, 499 U.S.
at 78 (justifying diminished DFR protections to give
unions “wide latitude” for “the effective performance
of their bargaining responsibilities”); Amalgamated
Ass’n of St., Elec. Ry. & Motor Coach Emps. v.
Lockridge, 403 U.S. 274, 301 (1971) (holding that a
plaintiff must “adduce substantial evidence of discrimination that is intentional, severe, and unrelated
to legitimate union objectives” to establish that the
union’s exercise of judgment was discriminatory);
Ford Motor Co., 345 U.S. at 338 (recognizing that the
Court should not decline to give a union the deference
owed to its exercise of judgment unless its actions or
inactions are so far outside a wide range of reasonableness that they are wholly irrational or arbitrary);
United Steelworkers of Am. v. Rawson, 495 U.S. 362,
372-73 (1990) (holding that even a union’s negligence
does not breach its DFR).
This case is a watershed moment concerning the
DFR’s continued viability as a bulwark against unconstitutional forced exclusive union representation
schemes. The Ninth Circuit’s decision deals a critical
blow to the DFR’s continued effectiveness that, if allowed to stand, would necessitate striking down exclusive representation along with it. This Court should
grant the petition and decide the second question presented.
31
III. The questions presented are important to
employees’ freedoms from forced unionism,
and this case is an ideal vehicle to resolve
them.
The Ninth Circuit’s decision dismantles the RLA’s
speech and association protections and unravels the
DFR to the detriment of millions of private sector employees who are subject to the abuses of forced unionism. The lower court’s decision affects nearly half a
million RLA-covered employees, including flight attendants, pilots, and railroad engineers, as well as
millions more NLRA-covered private sector employees.8 As explained, RLA § 2, Eleventh (a) and NLRA §
8(a)(3) are “statutory equivalent[s],” and the DFR is
the same under both statutes. See supra at 6, 22, 26.
The decision hands unions unchecked power to coerce and discriminate against RLA-covered employees
who are essential to the daily operations of this nation’s airlines and railroads, and the safe and efficient
transportation of people, goods, and services. The
same is true for NLRA-covered workers who are vital
to this nation’s manufacturing, retail business, universities, and health care facilities, among other industries in the private sector.
8 U.S. Bureau of Labor Statistics, Air Transportation: NAICS
481,
Employment
by
Occupation
(2024),
https://www.bls.gov/iag/tgs/iag481.htm; U.S. Bureau of Labor
Statistics, Rail Transportation: NAICS 482, Employment by Occupation (2024), https://www.bls.gov/iag/tgs/iag482.htm; Data
USA, Rail Transportation, Occupations Distribution graph
(2022), https://datausa.io/profile/naics/rail-transportation; Data
USA, Air Transportation, Occupations Distribution graph
(2022), https://datausa.io/profile/naics/air-transportation.
32
Ensuring that the Ninth Circuit’s decision does not
dismantle employees’ RLA and NLRA speech and associational freedoms from forced unionism is of national importance. The Ninth Circuit’s decision jeopardizes employees’ ability to do their jobs free from union coercion, hostility, and discrimination in the workplace.
The Ninth Circuit’s decision that unions can take
away non-members’ seniority-based benefits and bidding privileges allows unions to disturb employees’
work lives and carriers’ business operations because
pilots and flight attendants use their seniority to select their daily flight assignments, work days, vacations, and other employment benefits. See Rakestraw,
981 F.2d at 1535 (“Higher seniority means more desirable assignments[.]”); Addington v. U.S. Airline Pilots Ass’n, 791 F.3d 967, 980 (9th Cir. 2015) (“Seniority is immensely valuable to [employees]; greater seniority means better wages and working conditions.”);
see also Radio Officers, 347 U.S. at 25-27, 41-42, 46
(striking down a nearly identical scheme as coercive
of NLRA-covered employees’ rights); supra at 22-23.
Preventing discrimination that harms employees’
seniority expectations is of nationwide importance.
See Lorance v. AT&T Techs., Inc., 490 U.S. 900, 905,
12 (1989) (recognizing that “a competitive seniority
system establishes a ‘hierarchy [of contractual rights]
… according to which … various employment benefits
are distributed’” (quoting Franks v. Bowman Transp.
Co., 424 U.S. 747, 768 (1976)) (cleaned up).
Except for Street and Ellis this Court has not decided a case requiring extensive analysis of § 2,
33
Fourth’s agency fee prohibition since Congress’s enactment of § 2, Eleventh. Street, 367 U.S. at 750, 76768; Ellis, 466 U.S. at 448; supra at 8-13. Nor has this
Court examined the DFR issue presented in this case,
except for deciding that unions cannot discriminate
based on an employee’s non-membership in a union.
See Steele, 323 U.S. at 198, 201 n.2, 204; Vaca, 386
U.S. at 182. Notwithstanding the recent reminder in
Janus that a weakened DFR raises serious questions
regarding exclusive representation’s constitutionality, some of this Court’s own prior precedent has diminished and distorted the DFR’s protections since
Steele and Vaca. See O’Neill, 499 U.S. at 78; supra at
30. Resolving these constitutional issues is of national
importance to all RLA and NLRA-covered employees
affected by the Ninth Circuit’s unraveling of the DFR.
This is the ideal case to resolve the issues presented. The facts are undisputed, and there are no
procedural or jurisdictional impediments to review.
Indeed, the Ninth Circuit and all parties agree on the
most critical fact—that TWU and Allegiant’s Agency
Fee Requirement was not a § 2, Eleventh (a) “union
security” agreement. Pet.App.9a, 12a.
That makes this case an ideal vehicle to reconcile
the Ninth Circuit’s conflicts with Supreme Court, circuit court, and NLRB precedent, and to secure the
RLA’s general agency fee prohibition as recognized in
Street, Ellis, and Harris, as well as the DFR’s vigorous
protections of employees who do not wish to support
or associate the union, without which, the extraordinary power of exclusive representation would be unconstitutional. See Steele, 323 U.S. at 198-99, 204;
Vaca, 386 U.S. at 182; Janus, 585 U.S. at 901.
34
CONCLUSION
The Court should grant Bahreman’s petition, issue
a writ of certiorari to the United States Court of Appeals for the Ninth Circuit, and set the case for briefing and argument on the questions presented.
Respectfully submitted,
MATTHEW B. GILLIAM
Counsel of Record
MILTON L. CHAPPELL
c/o NATIONAL RIGHT TO
WORK LEGAL DEFENSE
FOUNDATION, INC.
8001 Braddock Rd.,
Suite 600
Springfield, VA 22160
(703) 321-8510
mbg@nrtw.org
mlc@nrtw.org
Counsel for Petitioner
April 21, 2025
APPENDIX
APPENDIX TABLE OF CONTENTS
Page
Appendix A
Opinion, United States Court of Appeals
for the Ninth Circuit, Bahreman v.
Allegiant Air, LLC, et al., No. 23-16156
(December 10, 2024) ...................................... 1a
Appendix B
Order, United States District Court for
the District of Nevada, Bahreman v.
Allegiant Air, LLC, et al., No. 2:20-cv00437-ART-DJA (August 9, 2023)............... 15a
Appendix C
Judgment, United States District Court
for the District of Nevada, Bahreman v.
Transport Workers Union of America
Local 577, No. 2:20-cv-00437-ART-DJA
(August 31, 2023) ......................................... 31a
Appendix D
Order, United States Court of Appeals for
the Ninth Circuit, Bahreman v. Allegiant
Air, LLC, et al., No. 23-16156 (January
22, 2025) ....................................................... 33a
Appendix E
Statutory Provisions .................................... 34a
45 U.S.C. § 152 (Fourth) ........................ 34a
45 U.S.C. § 152 (Eleventh) ..................... 35a
Appendix F
Agency Fee Requirement ............................ 38a
1a
Appendix A
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALI BAHREMAN,
Plaintiff-Appellant,
v.
ALLEGIANT AIR, LLC;
TRANSPORT WORKERS
UNION OF AMERICA
LOCAL 577,
No. 23-16156
D.C. No.
2:20-cv00437ART-DJA
OPINION
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Anne R. Traum, District Judge, Presiding
Argued and Submitted October 7, 2024
San Francisco, California
Filed December 10, 2024
Before: M. Margeret McKeown, Lucy H. Koh,
and Anthony D. Johnstone, Circuit Judges.
Opinion by Judge Johnstone
2a
SUMMARY
________________________________________________
Railway Labor Act
The panel affirmed the district court’s summary
judgment in favor of Allegiant Air and the Transport
Workers Union in Allegiant flight attendant Ali
Bahreman’s action alleging that the Collective
Bargaining Agreement between Allegiant and the
Union violated the Railway Labor Act of 1926.
The Agreement gives employees a choice a
between paying dues to join the Union or paying
agency fees without joining the Union.
The
Agreement’s
enforcement
mechanism
gives
employees a third choice: pay neither dues nor fees,
and lose bidding privileges for work schedules.
Bahreman chose not pay any fees, and lost his bidding
privileges.
The panel held that the Railway Labor Act does
not prohibit a collective bargaining agreement that
conditions seniority-based bidding privileges—not
continued employment—on payment of either union
dues or agency fees.
Addressing Bahreman’s claims that the
Agreement’s suspension of bidding privileges for
nonpayment of agency fees violates the Act, the panel
held that (1) the Agreement does not violate the Act’s
anti-coercion provision because it does not induce
employees to join the Union, (2) the Act does not
prohibit unions from reaching collective bargaining
agreements with different terms other than those that
the Act explicitly permits, and (3) the Union did not
violate its duty of fair representation because the
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the
reader.
3a
Union enforced the Agreement equally among all
members of the bargaining unit.
COUNSEL
Matthew B. Gilliam (argued) and Milton L.
Chappell, National Right to Work Legal Foundation
Inc., Springfield, Virginia, for Plaintiff-Appellant.
Andrew D. McClintock (argued), Ford & Harrison
LLP, Atlanta, Georgia; Jacquelyn L. Thompson, Ford
& Harrison LLP, Washington, D.C.; Proloy K. Das, I,
Ford & Harrison LLP, Hartford, Connecticut; Joshua
A. Sliker, Jackson Lewis PC, Las Vegas, Nevada;
Osnat K. Rind (argued) and Mark Richard, Phillips
Richard & Rind PA, Miami, Florida; Richard G.
McCracken, McCracken Stemerman & Holsberry
LLP, Oakland, California; for Defendants-Appellees.
4a
OPINION
JOHNSTONE, Circuit Judge:
The Railway Labor Act of 1926, enacted to
prevent labor disputes from interrupting interstate
commerce, requires carriers and their employees to
resolve disagreements through collective bargaining
and arbitration. Over time, Congress has tailored the
Act’s terms to protect the freedom of employees to
associate by joining—or not joining—labor unions.
First, in response to carriers’ use of “company unions,”
Congress amended the Act to forbid carriers from
interfering with employee organizing. Second, in
response to “free riders,” Congress amended the Act to
permit carriers and unions to compel union
membership through “union security agreements,”
and to deduct associated payments from wages. Then
the Supreme Court, in response to freedom of
association concerns, specified that the Act did not
require employees to support union activities
unrelated to collective bargaining, like political
spending. So carriers and unions began to replace
their “union-shop” agreements, which require all
employees to join the union, with “agency-shop”
agreements, which allow employees to forgo union
membership as long as they pay “agency fees” to
support collective bargaining. And the Supreme
Court affirmed that the Act permits these
agreements.
Ali Bahreman worked as a flight attendant at
Allegiant Air, a carrier under the Act. Allegiant and
the Transport Workers Union negotiated a Collective
Bargaining Agreement that gives employees a choice
between paying dues to join the union or paying
agency fees without joining. The Agreement’s novel
enforcement mechanism, in effect, gives employees a
third choice: pay neither dues nor fees, and lose
seniority-based bidding privileges for work schedules.
Bahreman chose not to pay and lost his bidding
5a
privileges. He sued Allegiant and the Union, claiming
that the Agreement violates several provisions of the
Act. The central question that Bahreman’s claims
present is whether the Act prohibits a collective
bargaining agreement that conditions seniority-based
bidding privileges—not continued employment—on
payment of either union dues or agency fees. In
agreement with the district court, we answer no.
I. Bahreman’s challenge to the Agreement
Allegiant and the Transport Workers Union,
which represents flight attendants for that carrier,
entered a Collective Bargaining Agreement. Section
29 of the Agreement, entitled “Union Security,” offers
flight attendants a choice between becoming duespaying members of the Union or paying an agency fee
in the form of a “service charge.” A flight attendant
who fails to pay membership dues (for members) or
the service charge (for nonmembers) loses bidding
privileges for work schedules, including for flight
assignments and leave. Flight attendants receive
their flight assignments, work schedules, and other
benefits such as vacation and leave through a
seniority-based bidding program, so a loss of bidding
privileges means a loss of important benefits.
Bahreman began working for Allegiant as a flight
attendant in 2015. He chose not to join the Union or
pay the service charge. Allegiant therefore suspended
his bidding privileges under the Agreement,
beginning in 2019 and lasting until his resignation in
2022. Bahreman sued Allegiant and the Union,
seeking declaratory relief, injunctive relief, and
damages resulting from a loss of his bidding
privileges.
He claims that the Agreement’s
suspension of bidding privileges for nonpayment of
agency fees violates the Act in three ways. First, it
deviates from the employment-termination remedy in
the Act’s “union security agreements” provision.
Second, it coerces him to join the Union in violation of
6a
the Act’s “anti-coercion” provision. Third, it violates
the Union’s duty of fair representation to nonunion
workers.
The district court granted summary judgment to
Allegiant and the Union on all claims. Bahreman
timely appeals.
We review the district court’s
summary judgment order de novo. Desire, LLC v.
Manna Textiles, Inc., 986 F.3d 1253, 1259 (9th Cir.
2021).
II. The Railway Labor Act
Congress passed the Act to promptly resolve
disputes between rail carriers and their employees to
avoid interrupting the transportation that sustains
interstate commerce. Railway Labor Act, Pub. L. No.
69-257, 44 Stat. 577 (1926); see also 45 U.S.C. §
151a(1). The Act does so by imposing a duty on both
parties “to exert every reasonable effort to make and
maintain agreements concerning rates of pay, rules,
and working conditions” and “to settle all disputes”
through the Act’s arbitration processes. 45 U.S.C. §
152, First. After the 1926 enactment, labor unions
soon complained “that the carriers interfered with the
employees’ freedom of choice of representatives by
creating company unions.” Int’l Ass’n of Machinists v.
Street, 367 U.S. 740, 759 (1961). Congress responded
in 1934 by amending the Act to guarantee employees
“the right to organize and bargain collectively through
representatives of their own choosing,” and
prohibiting carriers from “influenc[ing] or coerc[ing]
employees” in their choice of union membership. 45
U.S.C. § 152, Fourth; Act of June 21, 1934, ch. 691, 48
Stat. 1187. Congress extended the Act to air carriers
two years later. 45 U.S.C. § 181; see Act of April 10,
1936, ch. 166, 49 Stat. 1189.
A decade later, the Supreme Court held that,
under the Act, “a union’s status as exclusive
bargaining representative carries with it the duty
fairly and equitably to represent all employees.…,
7a
union and nonunion.” Street, 367 U.S. at 761 (citing
Steele v. Louisville & Nashville R.R. Co., 323 U.S. 192
(1944)). This created a “free rider” problem, as
“[n]onunion members . . . share[d] in the benefits
derived from collective agreements negotiated by the
railway labor unions but b[ore] no share of the cost of
obtaining such benefits.” Id. at 761-62 (quoting H.R.
Rep. No. 81-2811, at 4 (1950)). Again, Congress
responded. In 1951, it amended the Act to permit
carriers and unions “to make agreements, requiring
as a condition of continued employment, that . . . all
employees shall become members of the labor
organization representing” them. 45 U.S.C. § 152,
Eleventh(a); Act of Jan. 10, 1951, ch. 1220, 64 Stat.
1238. In short, the Act permits but does not require
union shops. It also permits “checkoff” agreements,
under which employees can authorize the carrier to
deduct “any periodic dues, initiation fees, and
assessments” from paychecks and pay them to the
union. 45 U.S.C. § 152, Eleventh(b).
In 1961, the Supreme Court further clarified the
Act’s scope. Street, 367 U.S. at 767. The Court
explained that Section 2, Eleventh “contemplated
compulsory unionism to force employees to share the
costs of negotiating and administering collective
agreements” and settling disputes under them, Id. at
764. But, the Court held, “unions must not support
[political] activities, against the expressed wishes of a
dissenting employee, with his exacted money.” Id. at
770. Unions and carriers adapted by negotiating new
terms in collective bargaining agreements. Instead of
union-shop agreements, some unions and carriers
negotiated agency-shop agreements, which do not
require formal union membership or payment of
union dues. Instead of joining the union, an employee
can pay an agency fee, used only to support collective
bargaining and administration of the contract. See
Ellis v. Bhd. of Ry., Airline & S.S. Clerks, 466 U.S.
8a
435, 439, 446-48 (1984) (analyzing under Section 2,
Eleventh an agreement interpreted so that
“employees need not become formal members of the
union, but must pay agency fees”). An agency shop
“places the option of membership in the employee
while still requiring the same monetary support as
does the union shop.” NLRB v. Gen. Motors, 373 U.S.
734, 744 (1963) (applying the National Labor
Relations Act).
Although Section 2, Eleventh refers to ”members”
and “membership” of a “labor organization,” the
Supreme Court has read the Act to permit agreements
under which nonmembers also must also [sic]
financially support unions’ collective bargaining
activity. In other words, the Act “allows … agencyshop agreements.” Air Line Pilots Ass’n v. Miller, 523
U.S. 866, 872 (1988) (citing 45 U.S.C. § 152, Eleventh);
see also Ellis, 466 U.S. at 446-48. This interpretation
of the Act permits a form of collective bargaining
agreement that arose after its enactment: the agencyshop agreement. See Ellis, 466 U.S. at 447. As the
Court explained in authorizing agency-shop
agreements under the similar language of the
National Labor Relations Act, any “difference between
the union and agency shop … is more formal than
real,” because “[m]embership’ as a condition of
employment is whittled down to its financial core.”
Gen. Motors, 373 U.S. at 742, 744. Thus, for present
purposes, the terms “members” and “membership”
include employees who join the union and those who
pay agency fees. See Air Line Pilots, 523 U.S. at 872;
Klemens v. Air Line Pilots Ass’n, Int’l, 736 F.2d 491,
494 (9th Cir. 1984).
III. The Agreement does not violate the Act.
The question presented here is whether the Act
permits a collective bargaining agreement that
conditions only bidding privileges, and not continued
employment, on payment of either union dues or
9a
agency fees. All parties agree that, because it does not
condition continued employment on payment of dues
or fees, the Agreement is not a “union security
agreement” as defined by the Act. They disagree on
what follows. To Bahreman, this means that the
Agreement is not permitted by the union security
authorization in Section 2, Eleventh, which he
contends is the only exception to the anti-coercion
prohibition in Section 2, Fourth. To Allegiant and the
Union, this means that the Agreement is not
contemplated by either the Act’s union security
authorization or its anti-coercion prohibition. On that
view, like any other negotiated term of employment
not covered by the Act, the Agreement is lawful.
A. The Agreement does not induce employees
to join the Union in violation of Section 2,
Fourth.
Bahreman claims the Agreement violates the
Act’s anti-coercion provision in Section 2, Fourth. To
protect employees’ “right to organize and bargain
collectively through representatives of their own
choosing,” Section 2, Fourth prohibits carriers from
“influenc[ing] or coerc[ing] employees in an effort to
induce them to join … any labor organization.” 45
U.S.C. § 152, Fourth. Under the Agreement, an
employee who pays neither dues nor fees loses bidding
privileges regardless of union membership. So we ask
whether an agreement that treats union members the
same as any other bargaining unit member coerces
employees to join the union. We hold that it does not.
Bahreman argues that the Agreement induces
him to join the Union by requiring that he either pay
agency fees or forgo bidding privileges. But requiring
agency fees does not incentivize union membership
because, under the Agreement, those fees cannot
exceed union dues. In fact, according to Bahreman,
monthly agency fees at Allegiant were $25 compared
with $31 for union dues. Because it would cost
10a
Bahreman less to pay agency fees than to pay union
dues, there is no financial inducement to join the
Union. Similarly, the suspension of bidding privileges
for nonpayment of agency fees does not induce union
membership because members face the same
consequence for nonpayment of union dues.
Employees who pay union dues or agency fees
maintain their bidding privileges. Those who do not
make those payments lose their bidding privileges.
Allegiant cannot very well coerce Bahreman into the
Union by employing him under terms that treat union
members and nonmembers alike.
So Bahreman turns to a different statute not at
issue: Section 8(a)(3) of the National Labor Relations
Act. 29 U.S.C. § 158(a)(3). Section 8(a)(3) prohibits
reductions in seniority for nonpayment of union dues
in the absence of a valid union security agreement.
See Radio Officers’ Union of Com. Telegraphers Union,
AFL v. NLRB, 347 U.S. 17, 24, 41-42 (1954).
Bahreman argues that, because Section 8(a)(3) of the
NLRA and Section 2, Eleventh(a) of the Act share
“nearly identical language,” Comm’ns [sic] Workers of
Am. v. Beck, 487 U.S. 735, 745-46 (1988), we should
import this prohibition into Section 2, Fourth. This
argument fails. The NLRA does not apply to Allegiant
and “cannot be imported wholesale into the railway
labor or arena.” Trans World Airlines, Inc. v. Indep.
Fed’n of Flight Attendants, 489 U.S. 426, 439 (1989)
(quoting Bhd. of R.R. Trainmen v. Jacksonville
Terminal Co., 394 U.S. 369, 383 (1969)). Because the
Act lacks the NLRA’s language prohibiting
“discrimination in regard to … any term or condition
of employment,” 29 U.S.C. § 158(a)(3), there is no
analogous textual grounding for an attack on the
Agreement’s seniority-related provisions. Neither the
NLRA nor Radio Officers’ Union controls.
Nor does the Agreement violate Section 2, Fourth’s
prohibition on “deduct[ing] from the wages of
11a
employees any dues, fees, assessments, or other
contributions payable to labor organizations.” That is
because Section 2, Eleventh(b) expressly permits a
carrier and a labor organization together “to make
agreements providing for the deduction” of these
payments. 45 U.S.C. § 152, Eleventh(b). As the First
Circuit explained, “[r]ead together, §§ 152, Fourth and
Eleventh(b) provide that carriers may not unilaterally
deduct dues from employee wages, but may do so upon
the agreement of all parties involved.” Wightman v.
Springfield Terminal Ry. Co., 100 F.3d 228, 235 (1st
Cir. 1996). And the Act allows checkoff agreements
for agency fees. See Felter v. S. Pac. Co., 359 U.S. 326,
330-31 (1959). “Thus, even in the absence of a union
shop agreement” permitted by Eleventh(a),
“employees and carriers may agree to a dues
deduction schedule under § 152, Eleventh(b).
Wightman, 100 F.3d at 235.
B. Section 2, Eleventh(a) does not prohibit
the Agreement.
Bahreman also claims that the Agreement violates
Section 2, Eleventh(a). That provision permits a
carrier and a union “to make agreements, requiring,
as a condition of continued employment, that … all
employees shall become members of the labor
organization representing their craft or class.” 45
U.S.C. § 152, Eleventh(a). The Agreement does not
require employees to join the Union or pay agency fees
as “a condition of continued employment.” So we ask
whether this permissive statute prohibits an
agreement with different terms. We hold that it does
not.
Two material terms distinguish the Agreement
here from the agreements contemplated by
Eleventh(a). First, the Agreement does not require
membership in a union. Instead, it allows employees
to pay an agency fee to support “the administration of
the Agreement and the representation of” employees.
12a
And as we have observed, “[a]lthough the statute
explicitly authorizes only union-shop agreements, it
also permits agency-shop agreements.” Klemens, 736
F.2d at 494. Second, unlike a typical agency-shop
agreement, the Agreement does not require payment
of agency fees “as a condition of continued
employment.” Instead of being fired, employees who
fail to pay agency fees, like member employees who
fail to pay union dues, forgo their bidding privileges,
This
second
distinction,
Bahreman
claims,
disqualifies the Agreement under Section 2,
Eleventh(a).
The text of Section 2, Eleventh(a) is permissive. It
provides that carriers and unions “shall be permitted”
to enter into agreements that require payment of
union dues as a condition of continued employment.
45 U.S.C. § 152, Eleventh(a). It does not by its terms
prohibit carriers and unions from reaching collective
bargaining agreements other than those it explicitly
permits, including agency-shop agreements. See
Street, 367 U.S. at 766-67; Ellis, 466 U.S. at 438-39.
Bahreman’s alternate, prescriptive gloss on the Act
contravenes its purpose: to provide the means for
carriers and unions to collectively bargain for the pay,
rules, and working conditions that the parties want.
The Agreement reflects the deal struck by Allegiant
and the Union. It links the bargained-for bidding
privileges to the agency fees that support the
bargaining. This resolves the problem of nonpaying
employees taking a free ride to the bidding privileges
the Union negotiated. Thus, the Agreement arose
from the Act’s collective-bargaining process, does not
contradict its text, and is consistent with its anti-free
rider purpose.
Bahreman points to cases, like Ellis, 466 U.S. at
438-39, and Klemens, 736 F.2d at 494, 496-98, that he
says limit the enforcement of agency-shop agreements
to termination. But Ellis holds only that unions and
13a
carriers may negotiate a contract “requiring all
employees to become members of or to make
contributions to the union.” 466 U.S. at 448 (emphasis
added). Ellis says nothing about whether the Act
permits other types of agreements that encourage
payment of agency fees. Klemens offers even less help
to Bahreman. There, we held that the Act allows “a
cause of action against unions that attempt to enforce
agency shop agreements in a manner inconsistent
with” Section 2, Eleventh(a). Klemens, 736 F.2d at
496. We explained that unions may collect dues or fees
only under a lawful collective bargaining agreement,
but we said nothing about the other terms that such
an agreement could contain. See id. at 496, 498 n.5.
These cases do not require a departure from the
permissive plain meaning of Section 2, Eleventh(a).
IV.
The Union did not violate its duty of fair
representation.
When a union becomes the exclusive bargaining
representative for a group of workers, it must
“represent fairly the interests of all bargaining-unit
members.” Int’l Bhd. of Elec. Workers v. Foust, 442
U.S. 42, 47 (1979); see also Demetris v. Transp.
Workers Union of Am., AFL-CIO, 862 F.3d 799, 80405 (9th Cir. 2017) (explaining this duty also applies to
unions under the Act). A union breaches this duty
“when its conduct toward a member of the bargaining
unit is arbitrary, discriminatory, or in bad faith.”
Demetris, 862 F.3d at 805 (quoting Marquez v. Screen
Actors Guild, Inc., 525 U.S. 33, 44 (1998)). The Union’s
actions here were not discriminatory because all
employees who fail to pay union dues or agency fees
face the same result, and no individual employee is
singled out. See Amalgamated Ass’n of St., Elec. Ry &
Motor Coach Emps. of Am. v. Lockridge, 403 U.S. 274,
301 (1971). Nor were they arbitrary, discriminatory,
or in bad faith because the Union acted according to
the Agreement when it suspended Bahreman’s
14a
bidding privileges. See Burkevich v. Air Line Pilots
Ass’n, Intern. [sic], 849 F.2d 346, 349 (9th Cir. 1990);
Demetris, 862 F.3d at 805.
*
*
*
The Railway Labor Act empowers carriers and
their employees, through unions, to collectively
bargain the terms of employment. Its protections
neither prescribe termination nor proscribe
alternative conditions on agency-fee agreements
made and maintained through its processes.
Allegiant therefore does not unlawfully induce union
membership under Section 2, Fourth. Nor is the
Agreement prohibited by Section 2, Eleventh. And
the Union does not violate its duty of fair
representation in enforcing the Agreement equally
among all members of the bargaining unit.
AFFIRMED.
15a
Appendix B
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
ALI BAHREMAN,
v.
Plaintiff,
ALLEGIANT AIR,
LLC and
TRANSPORT
WORKERS UNION
OF AMERICA
LOCAL 577,
Case No. 2:20cv-00437ART-DJA
ORDER
Defendants.
Before the Court are Motions for Summary
Judgment by Plaintiff Ali Bahreman (“Bahreman”)
(ECF No. 79), and Defendants Allegiant Air, LLC
(“Allegiant”) (ECF No. 76), and Transport Workers
Union of America, Local 577 (“TWU”) (collectively,
“Defendants”) (ECF No. 77). The question before the
Court is whether Section 29 of the Collective
Bargaining Agreement (“CBA”) (“Section 29”)
between Allegiant and TWU is unlawful because it
suspends bidding privileges for union members and
nonmembers if they fail to pay their union dues or
agency fees, respectively. For the reasons stated
below, the Court denies Bahreman’s Motion for
Summary Judgment (ECF No. 79) and grants
16a
Defendants’ Motions for Summary Judgment. (ECF
Nos. 76, 77)
I. BACKGROUND
Bahreman was employed by Allegiant as a flight
attendant between April 6, 2015, and June 10, 2022.
(ECF No. 79 at 2). Allegiant is a common carrier by
air within the meaning of Section 201 of the Railway
Labor Act. 45 U.S.C. §152; (ECF No. 77 at 3). TWU is
the exclusive representative of the craft or class of
flight attendants employed by Allegiant. (Id.)
On December 21, 2017, Allegiant and TWU
entered into a CBA. (Id.) Section 29 of the CBA is at
issue in this litigation. Section 29 requires any flight
attendant to either apply for union membership
within 60 days after the date of employment and pay
union dues upon admittance to the TWU, or not join
the union and pay a monthly “service charge”—
commonly referred to as an “agency fee”—that
contributes to TWU’s representation of Allegiant’s
flight attendants but does not fund TWU’s political
activities. (Id. at 3-4). As discussed below, a flight
attendant’s bidding privileges are suspended under
Section 29 if they pay neither union dues nor agency
fees.
Bidding is the process by which Allegiant flight
attendants are assigned work and vacation schedules.
(ECF No. 76 at 5). Flight attendants “bid” on
particular trips or days off to build their schedules for
the upcoming month. (Id.) Allegiant processes
attendants’ bids in order of seniority, and flight
attendants’ work schedules are thereby awarded
based on their seniority. (Id.).
Because bids are processed in the order of
seniority, a flight attendant with lower seniority is
less likely to be awarded the most desirable work
schedules. For example, flight attendants with lower
seniority are more likely to be assigned “reserve lines”
that require 14-hour on-call periods on some days
17a
when no trip is assigned. (Id. at 5-6).
Under Section 29 D and E of the CBA, an
Allegiant flight attendant’s bidding privileges are
suspended if they pay neither union dues nor agency
fees. (ECF No. 77 at 4). This means that, although the
attendant retains their seniority for other purposes,
e.g., pay rates, their seniority is not taken into
consideration in the bidding process, (ECF No. 76 at
7). The parties strongly disagree about the magnitude
of the impact suspension of bidding privileges has on
a given flight attendant’s work schedule and pay,
among other benefits. In plain terms, however, a flight
attendant who pays either union dues or agency fees
will have a higher likelihood of obtaining their
preferred schedule than an attendant of equivalent
seniority who pays neither their dues or fees and
consequently has their bidding privileges suspended.
On September 3, 2019, Allegiant emailed
Bahreman and informed him that his bidding
privileges were suspended due to nonpayment of
union dues or agency fees. (ECF No. 79 at 6).
Bahreman’s bidding privileges remained suspended
due to nonpayment until he resigned his employment
at Allegiant on June 10, 2022. (Id.).
Bahreman initiated this action on March 3, 2020.
On March 21, 2021, District Judge Richard F.
Boulware II denied Defendants’ Motion to Dismiss
without prejudice. (ECF No. 42).
On September 14, 2022, Defendants filed their
Motions for Summary Judgment. (ECF Nos. 76, 77).
On the same day, Bahreman filed his own Motion for
Summary Judgment. (ECF No. 79).
On July 10, 2023, this Court held oral argument
on the Parties’ Motions to Dismiss. (ECF Nos. 76, 77,
79).
For the reasons discussed herein, the Court
grants Defendants’ Motions for Summary Judgment
18a
(ECF Nos. 76, 77) and denies Bahreman’s Motion for
Summary Judgment. (ECF No. 79).
II. LEGAL STANDARD
“The purpose of summary judgment is to avoid
unnecessary trials when there is no dispute as to the
facts before the court.” Nw. Motorcycle Ass’n v. U.S.
Dep’t of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994)
(citation omitted). Summary judgment is appropriate
when the pleadings, the discovery and disclosure
materials on file, and any affidavits “show there is no
genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An
issue is “genuine” if there is a sufficient evidentiary
basis on which a reasonable factfinder could find for
the nonmoving party and a dispute is “material” if it
could affect the outcome of the suit under the
governing law. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248-49 (1986). Where reasonable minds
could differ on the material facts at issue, however,
summary judgment is not appropriate. See id. at 25051. “The amount of evidence necessary to raise a
genuine issue of material fact is enough ‘to require a
jury or judge to resolve the parties’ differing versions
of the truth at trial.”’ Aydin Corp. v. Loral Corp., 718
F.2d 897, 902 (9th Cir. 1983) (quoting First Nat’l Bank
v. Cities Service Co., 391 U.S. 253, 288-89 (1968)). In
evaluating a summary judgment motion, a court
views all facts and draws all inferences in the light
most favorable to the nonmoving party. See Kaiser
Cement Corp. v. Fishbach & Moore, Inc., 793 F.2d
1100, 1103 (9th Cir. 1986) (citation omitted).
The moving party bears the burden of showing that
there are no genuine issues of material fact. See
Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th
Cir. 1982). Once the moving party satisfies Rule 56’s
requirements, the burden shifts to the party resisting
the motion to “set forth specific facts showing that
19a
there is a genuine issue for trial.” Anderson, 477 U.S.
at 256. The nonmoving party “may not rely on denials
in the pleadings but must produce specific evidence,
through affidavits or admissible discovery material, to
show that the dispute exists,” Bhan v. NME Hosps.,
Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), and “must
do more than simply show that there is some
metaphysical doubt as to the material facts.” Orr v.
Bank of Am., 285 F.3d 764, 783 (9th Cir. 2002)
(quoting Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986)). “The mere existence
of a scintilla of evidence in support of the plaintiff’s
position will be insufficient[.]” Anderson, 477 U.S. at
252.
III.
DISCUSSION
A. Section 2, Eleventh of the RLA
Bahreman asserts three claims: that Section 29
violates § 2, Eleventh (a) of the RLA because
termination is the sole remedy under the RLA for
nonpayment of union membership dues or service fees
(Claim I); that service fees are “discriminatory” and
coercive in violation of § 2, Fourth (Claim II); and that
the Defendants have violated the RLA’s duty of fair
representation by conditioning bidding privileges on
payment of membership dues or agency fees (Claim
III). Bahreman seeks summary judgment on all three
claims, as does each Defendant. There are no disputed
issues of fact relevant to these claims, which turn on
whether an employee can lawfully have their bidding
privileges suspended for nonpayment of union
membership dues or service fees.
The parties agree that Section 29 is not a union
security agreement within the statutory meaning of §
2, Eleventh (a) of the RLA, but disagree about whether
it is lawful for employees to lose bidding privileges –
rather than face termination – for failing to pay union
dues or agency fees. (See ECF Nos. 76 at 3; 77 at 17;
92 at 19). Because such a contractual term is lawful,
20a
Defendants are entitled to summary judgment.
Congress enacted § 2, Eleventh of the RLA in 1951
to eliminate so-called “free riders.” Ellis v. Bhd. of Ry.,
Airline & S.S. Clerks, Freight Handlers, Exp. &
Station Emps, 466 U.S. 435, 447 (1984) (“We remain
convinced that Congress’ essential justification for
authorizing the union ship was the desire to eliminate
free riders ….”) Free riders are employees who receive
the benefits of union representation (e.g., a negotiated
collective bargaining agreement) without paying
anything towards the costs of collective bargaining
and other related activities. See Int’l Ass’n of
Machinists v. Street, 367 U.S. 740, 762 (1961)
(explaining that the freeriding issue was “decisive
with Congress” in enacting § 2, Eleventh). The
Supreme Court in Steele v. Louisville & N.R. Co., 323
U.S. 192, 202 (1944), required that unions represent
the interests of both union and nonunion members
fairly and equitably. After Steele, unions lobbied
Congress for a mechanism to avoid freeriding by
employees who would receive the benefits of union
representation but not pay anything towards the
expenses of that representation. Congress responded
by enacting § 2, Eleventh (a), which authorizes a
“union security agreement.” Under § 2, Eleventh (a),
carriers and labor organizations may “make
agreements, requiring, as a condition of continued
employment, that within sixty days following the
beginning of such employment . . . all employees shall
become members of the labor organization
representing their craft or class . . . .” 45 U.S.C. § 152,
Eleventh (a).
As interpreted by the Supreme Court, a union
security agreement gives employees a choice: they are
not required to join the union but must pay their fair
share for union representation by paying either union
membership dues or an “agency fee” for nonmembers.
Three aspects of this choice are important and well-
21a
settled. First, union membership is not required as
the Supreme Court recognized in Street, 367 U.S. at
770, Ellis, 466 U.S. at 455-56, and other cases. Second,
in lieu of membership dues unions may extract a
lesser “agency fee” from nonmembers that pays for
activities associated with collective bargaining and
general representation but does not fund any political
activities on the part of the union. See Street, 367 U.S.
740
at
770;
Ellis,
466
U.S.
at 447. In Railway Emp. Dept. v. Hanson, the
Supreme Court found agency fees imposed under § 2,
Eleventh (a) constitutional, holding that “the
requirement for financial support of the collectivebargaining agency by all who receive the benefits of
its work is within power of Congress.” Railway Emp.
Dept. v. Hanson, 351 U.S. 225, 238 (1956). Third, a
“union security agreement” requires payment of
membership dues or agency fees “as a condition of
continued employment,” so it authorizes termination
for nonpayment of either membership dues or agency
fees. 45 U.S.C. § 152, Eleventh (a).
Bahreman argues that Section 29 is an “illegal
union security agreement” because it provides for
suspension of bidding privileges, not termination, for
nonpayment dues or fees. Bahreman insists that
termination from employment is the sole remedy for
combating freeriding, (ECF No. 79 at 21 (“The RLA is
clear: termination from employment is the only
permissible enforcement of a lawful ‘union security’
contract; loss or discrimination of any other CBA
benefit is not permissible or legal.”)) Section 29 is
neither a “union security agreement” nor unlawful.
Neither the statutory text nor the case law mandates
termination nor prohibits lesser penalties for
nonpayment of dues or fees.
To fall within the statutory definition under § 2,
Eleventh (a), a union security agreement requires
termination as a remedy for nonpayment of dues or
22a
fees. See 45 U.S.C. § 152, Eleventh (a) (requiring
union membership – construed to include payment of
agency fees – within 60 days of employment “as a
condition of continued employment.”) Section 29 is not
a “union security agreement” precisely because it does
not impose termination as a penalty for nonpayment
of dues or fees. See, e.g., Bhd. of Locomotive Engineers
v. Kansas City S. Ry. Co., 26 F.3d 787, 790, 792-793
(8th Cir. 1994); Corzine v. Bhd. of Locomotive
Engineers, 147 F.3d 651, 653-54 (7th Cir. 1998). That
Congress authorized termination to combat free riders
in no way indicates that Congress barred parties from
negotiating lesser penalties. Bahreman’s argument
that termination is the only contractual penalty for
nonpayment of dues or fees cannot be squared with
the statutory text or the Supreme Court’s
jurisprudence around § 2, Eleventh (a).
First, the Supreme Court’s jurisprudence around §
2, Eleventh (a) makes clear that it is not subject to a
strict textualist reading that would literally require
an employee to join the union or be terminated. The
Supreme Court foreclosed such a reading of § 2,
Eleventh (a) when it held in Street, Ellis, and other
cases that employees need not join the union to satisfy
the union security agreement—they may also not join
the union and pay a reduced agency fee that does not
subsidize the union’s political activities. Bahreman
argues that there is one authorized remedy for failing
to pay union dues or agency fees: termination. (ECF
No. 79 at 21). Bahreman’s implied insertion of “only”
into the statutory text (carriers “shall be permitted to
[only] make agreements, requiring, as a condition of
continued employment, that . . . all employees shall
become members of the labor organization”) directly
conflicts with the Supreme Court’s express allowance
of agency fees in lieu of union membership to satisfy §
2, Eleventh (a).
Second, Bahreman fails to distinguish so-called
23a
“dual unionism” cases, where courts from the First,
Seventh, and Eighth Circuits have uniformly held
that seniority-based penalties for failure to pay dues
or agency fees are lawful under § 2, Eleventh (a) and
(c). Dual unionism cases are directly analogous to the
present case because they involve contractual clauses
that freeze or eliminate seniority for employees if they
do not pay an agency fee. This is precisely the type of
contractual arrangement Bahreman insists is
unlawful because it includes a seniority-based penalty
for nonpayment, rather than termination.
Dual unionism cases arise where an employee
begins work in a class represented by one union (for
sake of discussion, “Union A”), and then advances into
a different class represented by a different union,
“Union B”). Dual unionism cases are most common in
the railroad context, where “[A]spirant engineers
started as firemen, belonging to [Union A], and rose to
be engineers, at which point they might want to
belong to [Union B].” Corzine v. Bhd. of Locomotive
Engineers, 147 F.3d 651, 653 (7th Cir. 1998).
Employees in this situation are reluctant to give up
their membership and seniority in Union A, especially
if they may need to return to a Union A job in the
future. To avoid the burden of being a member of two
unions at once, Congress passed § 2, Eleventh (c),
which allows employees to satisfy the requirements of
§ 2, Eleventh (a) through membership in a national
union. See 45 U.S.C. §152 Eleventh (c). This “allows
engineers who belong to [Union A] by virtue of having
started as firemen to work as engineers without
having to join [Union B] in order to retain seniority in
both crafts . . .” Corzine, 147 F.3d at 653. § 2,
Eleventh (c) therefore relieves these employees “of the
dual expenses of ‘dual unionism.”’ Id. (citations
omitted). The combined effect of § 2, Eleventh (a) and
(c) is that a collective bargaining agreement cannot
require that the employee simultaneously enter into
24a
union security agreements with more than one union.
Id. at 654.
Two features of the dual unionism cases are
germane here. They confirm, first, that the CBA,
specifically Section 29, is not a union security
agreement and, second, that CBA’s [sic] can impose
non-termination penalties for nonpayment of fees or
dues. In the dual unionism cases, the “dormant”
union— Union A in the example above —inserted
clauses into its CBA requiring employees either stay
members of Union A or pay agency fees to Union A to
retain their seniority. Courts have uniformly
concluded that such clauses are lawful even though
they are not union security agreements because Union
A was not “conditioning [the employee’s] employment
in the engineers’ craft on their belonging to [Union A],
but only their retention of seniority in the train
service—a very different thing.” Corzine, 147 F.3d at
654 (emphasis in original); see also Wightman v.
Springfield Terminal Ry., 100 F.3d 228, 229-30, 231,
233 (1st Cir. 1996) (Conditioning seniority rights upon
payment of dues or agency fees did not violate [sic]
RLA. “Article 21 does not require an engineer to
choose between dual union membership or
unemployment; Article 21 simply requires an
engineer to choose whether to retain and continue to
accrue seniority in the train service craft.”); Bhd. of
Locomotive Engineers v. Kansas City S. Ry. Co., 26
F.3d 787, 790, 792-93 (8th Cir. 1994) (Holding
provision at issue was not a union security agreement
and lawful under § 2, Eleventh.); Dempsey v. Atchison,
Topeka and Santa Fe Ry., Co., 16 F.3d 832, 834 (7th
Cir. 1994) (same).
Although Bahreman argues that the dual
unionism cases do not apply, he misapprehends their
significance. Bahreman argues that he is being forced
to choose between paying an agency fee or
“surrender[ing] CBA seniority-based benefits to
25a
which[he] is already legally entitled,” whereas the
dual unionism cases “concerned non-bargaining unit
railroad employees seeking CBA benefits to which
they were not entitled from unions who did not
represent them.”1 (ECF No. 92 at 10-11). As cited here,
dual unionism cases stand for the proposition that a
contractual agreement between a union and a carrier
including seniority-related penalties for nonpayment
is not a “union security agreement” within the
statutory language of § 2, Eleventh (a) because the
penalty for nonpayment is something other than
termination. See Corzine, 147 F.3d at 655 (holding an
agreement including seniority-based penalties for
nonpayment was not a union security agreement and
lawful under § 2, Eleventh (a) and (c)); see also Bhd. of
Locomotive Engineers, 26 F.3d at 792-93. To hold, as
Bahreman urges, that § 2, Eleventh (a) only
authorizes union security agreements and that § 2,
Fourth bans any other kind of agreement (that is to
say clauses with penalties for nonpayment other than
termination) would require ignoring the dual
unionism jurisprudence by the First, Seventh and
Eighth Circuits, which have uniformly found that
employees may be lawfully required to pay agency fees
to a union or lose their seniority with that union under
§ 2, Eleventh.
For the foregoing reasons, the Court concludes that
Section 29 of the CBA is lawful under § 2, Eleventh of
the RLA.
1
The Court notes that any seniority-based benefits are
creatures of the CBA which created them, not a legal right to
which an employee is independently entitled. See, e.g.,
Wightman, 100 F.3d at 232 (“[U]nion contracts typically define
the scope and significance of seniority rights . . . . Seniority,
therefore, does not stem from the employer-employee
relationship and by extension become and [sic] employment
right, but rather from either a statute or the four corners of a
collective bargaining agreement. . . .”)
26a
B. Section 2, Fourth of the RLA
Next, Bahreman argues that Section 29 violates §
2, Fourth’s prohibition on carriers “influec[ing] or
coerc[ing] employees in an effort to join or remain or
not to join or remain members of any labor
organization . . .” 45 U.S.C. § 152, Fourth.2
Bahreman argues that Section 29 violates § 2,
Fourth because the suspension of Bahreman’s bidding
privileges “coerced him in his right not to join or pay
the union.” (ECF No. 79 at 19-20) (emphasis added).
According to Bahreman, “[c]oercion to pay mandatory
union service fees or charges is the same as influence
or coercion to join.” (Id. at 20). Bahreman provides no
pertinent citations to support this argument.
Although Bahreman cites Ellis, 466 U.S. at 455 and
Chicago Teachers Union v. Hudson, 475 U.S. 292, 303
n.10 (1986), neither provides support.3 Ellis, which
concerned the use of nonmember agency fees, affirmed
the legality of those fees, holding that “employees may
§ 2, Fourth primarily addresses the “precertification rights
and freedoms of unorganized employees.” Trans World Airlines,
Inc. v. Indep. Fed’n of Flight Attendants, 489 U.S. 426, 440
(1989). Although this case arises in the post-certification context,
the Court considers Bahreman’s arguments here in the interests
of completeness.
2
Bahreman additionally cites Radio Officers’ Union of
Commercial Telegraphers v. NLRB, 347 U.S. 17 (1954), which is
inapposite because it arose under the NLRA, rather than the
RLA, and involved claims that union members were treated
differently than nonmembers. In Radio Officers, a union member
was stripped of his seniority in route assignments for failing to
timely pay union dues. Id. at 26-27. The plaintiff’s seniority was
affected because he was a union member; he would not have lost
seniority as a nonmember. See Teamsters Loc. 41 (Byers
Transportation, Inc.), 94 NLRB 1494, 1495 (1951). Here, union
members and nonmembers, governed by the RLA, face the same
seniority-based penalty for nonpayment. Another Radio Officers
plaintiff alleged differential wage treatment for union and
nonunion members. See Radio Officers, 347 U.S. at 46.
Bahreman makes no such claim here.
3
27a
be compelled to pay their fair share” of expenses
associated with collective bargaining, grievances, and
related expenses. Ellis, 466 U.S. at 448. Hudson,
which concerned the union’s procedures for processing
agency fees from nonmembers to avoid subsidizing
union political activity, is inapposite because
Bahreman makes no claim that his agency fees would
be used for an unauthorized purpose. See Hudson, 475
U.S. at 302-03.
At oral argument, Bahreman advanced a similar
argument that “membership” is a “term of art” in the
RLA that includes paying agency fees to a union.
Therefore, according to Bahreman § 2, Fourth’s
prohibition on “influenc[ing] or coerc[ing] employees
in an effort to join or remain or not to join or remain
members of any labor organization” applies to
influencing employees to pay their agency fees or
union dues. 45 U.S.C. § 152, Fourth. This argument
fails for two reasons. First, reading § 2, Fourth in the
way Bahreman suggests would require overturning
the dual unionism jurisprudence of the First, Seventh,
and Eighth Circuits because the seniority-based
penalties in the dual unionism cases discussed above
were held lawful under § 2, Fourth and Eleventh. See,
e.g. Locomotive Engineers, 26 F.3d at 795; Dempsey,
16 F.3d at 843. Second, collapsing membership in a
union with the payment of agency fees to a union
undermines the entire rationale of cases like Street
and Ellis, where the Supreme Court explicitly found
compelling agency fees lawful under the RLA by
differentiating union membership from the payment
of agency fees. See, e,g., Ellis, 466 U.S. at 447-48
(“Only a union that is certified as the exclusive
bargaining agent is authorized to negotiate a contract
requiring all employees to become members of or make
contributions to the union.” (emphasis added)).
Fundamentally, Section 29 does not coerce an
employee to become a member of the TWU. Section 29
28a
imposes precisely the same penalty on both union
members and nonmembers when they fail to pay
either their union dues or agency fees. Therefore, the
Court finds that Section 29 is lawful under § 2, Fourth
of the RLA.
C. Duty of Fair Representation
Finally, Bahreman claims that TWU violated its
duty of fair representation by “targeting Bahreman
and other union-represented flight attendants” by
denying them seniority-based privileges for “refusing
to join and pay the union.” (ECF No. 79 at 29). The
RLA requires fair representation of and prohibits
“hostile discrimination against” any person
represented but the union, regardless of membership.
Steele, 323 U.S. at 202-03. “A breach of the statutory
duty of fair representation occurs only when a union’s
conduct toward a member of the collective bargaining
unit is arbitrary, discriminatory, or in bad faith.” Vaca
v. Sipes, 386 U.S. 171, 190 (1967).
Here, TWU’s enforcement of Section 29 is not
arbitrary, discriminatory, or in bad faith because
Section 29 treats all nonpayers alike regardless of
their membership in the union. Section 29.D states
that if a flight attendant fails to pay either their
“membership dues or service charge” they will be
“subject to loss of all bidding privileges.” (ECF No. 311 §29). Congress and the Supreme Court have plainly
authorized the extraction of agency fees from
nonmembers to pay their share of collective
bargaining costs. Section 29 is merely a mechanism to
encourage payments from union members and
nonmembers alike. As Bahreman has made no claim
that TWU personally discriminated against him on
the basis of his status as a nonmember (as opposed to
his status as a nonpayer), Bahreman’s duty of fair
representation claim accordingly fails.
Finally, Bahreman’s citation to Addington v. U.S.
Pilots Ass’n, 791 F.3d 967 (9th Cir. 2015) is unhelpful.
29a
(See ECF No. 92 at 13 n.67, 23 n.120, 123). Addington
did not involve union security agreements or either §
2, Fourth or Eleventh.4 Instead, Addington concerned
a “raw exercise of political power” by one group of
pilots over another during a merger where one group
of pilots were treated “as though they were nonunion
members.” Addington, 791 F.3d at 985. In Addington,
the union “clearly favor[ed] one side in the intra-union
dispute.” Id. at 988. Unlike in Addington, here union
members and nonmembers are subject to the same
penalty for not paying dues or agency fees.
For the foregoing reasons, the Court holds that
Section 29 does not violate TWU’s duty of fair
representation.
IV.CONCLUSION
Under the RLA as interpreted by the Supreme
Court, unions like TWU have a statutory duty to
represent nonmembers and members equally.
Therefore, TWU may require payment of member
dues or agency fees as a condition of employment and
may uniformly impose seniority-related penalties for
nonpayment of member dues or agency fees.
The Court notes that the parties made several
arguments and cited to several cases not discussed
above. The Court has reviewed these arguments and
cases and determines that they do not warrant
discussion as they do not affect the outcome of the
motions before the Court.
Therefore, it is ordered that Bahreman’s Motion
for Summary Judgment (ECF No. 79) is denied.
It is further ordered that TWU’s Motion for
Summary Judgment (ECF No. 77) is granted.
It is further ordered that Allegiant’s Motion for
4 This is also true of another case Bahreman repeatedly cites
as binding Ninth Circuit precedent, Bernard v. Air Line Pilots
Ass’n, Int’l, 873 F.2d 213 (9th Cir. 1989).
30a
Summary Judgment (ECF No. 76) is granted.
DATED THIS 9th day of August 2023.
s/
____________________________________
ANNE R. TRAUM
UNITED STATES DISTRICT JUDGE
31a
Appendix C
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
Ali Bahreman
v.
Plaintiff,
Transport Workers
Union of America
Local 577
JUDGMENT IN
A CIVIL CASE
Case Number:
22:20-cv-00437ART-DJA
Defendants.
_____
Jury Verdict. This action came before the
Court for a trial by jury. The issues have
been tried and the jury has rendered its
verdict.
_____
Decision by Court. This action came to
trial or hearing before the Court. The
issues have been tried or heard and a
decision has been rendered.
__X___
Decision by Court. This action came for
consideration before the Court. The issues
have been considered and a decision has
been rendered.
IT IS ORDERED AND ADJUDGED
32a
JUDGMENT in favor of Defendants, Transport
Workers Union of America Local 577, Allegiant Air,
LLC, and against Plaintiff, Ali Bahreman. It is
ordered that Bahreman’s Motion for Summary
Judgment is denied. It is further ordered that TWU’s
Motion for Summary Judgment is granted. It is
further ordered that Allegiant’s Motion for Summary
Judgment is granted.
08/09/2023
Date
DEBRA K. KEMPI
Clerk
/s/ A. Zamora
Deputy Clerk
[FILED August 31, 2023]
33a
Appendix D
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
[FILED January 22, 2025]
ALI BAHREMAN,
Plaintiff-Appellant,
v.
ALLEGIANT AIR,
LLC; TRANSPORT
WORKERS UNION
OF AMERICA
LOCAL 577,
No. 23-16156
D.C. No. 2:20-cv00437-ART-DJA
District of
Nevada,
Las Vegas
ORDER
Defendants-Appellees.
Before:
McKEOWN, KOH, and JOHNSTONE,
Circuit Judges.
Judges Koh and Johnstone voted to deny the
petition for rehearing en banc, and Judge McKeown
recommended denial of the petition for rehearing en
banc. The full court has been advised of the petition
for rehearing en banc, and no judge of the court has
requested a vote on whether to rehear the matter en
banc. See Fed. R. App. P. 40.
The petition for rehearing en banc (Dkt. No. 52)
is DENIED.
34a
Appendix E
Statutory Provisions
45 U.S.C. § 152 (Fourth)
Fourth. Organization and collective bargaining;
freedom
from
interference
by
carrier;
assistance in organizing or maintaining
organization by carrier forbidden; deduction of
dues from wages forbidden
Employees shall have the right to organize and
bargain collectively through representatives of their
own choosing. The majority of any craft or class of
employees shall have the right to determine who shall
be the representative of the craft or class for the
purposes of this chapter. No carrier, its officers, or
agents shall deny or in any way question the right of
its employees to join, organize, or assist in organizing
the labor organization of their choice, and it shall be
unlawful for any carrier to interfere in any way with
the organization of its employees, or to use the funds
of the carrier in maintaining or assisting or
contributing to any labor organization, labor
representative, or other agency of collective
bargaining, or in performing any work therefor, 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, or to deduct from
the wages of employees any dues, fees, assessments,
or other contributions payable to labor organizations,
or to collect or to assist in the collection of any such
dues, fees, assessments, or other contributions:
Provided, That nothing in this chapter shall be
construed to prohibit a carrier from permitting an
employee, individually, or local representatives of
employees from conferring with management during
working hours without loss of time, or to prohibit a
35a
carrier from furnishing free transportation to its
employees while engaged in the business of a labor
organization.
45 U.S.C. § 152 (Eleventh)
Eleventh. Union security agreements; check-off
Notwithstanding any other provisions of this
chapter, or of any other statute or law of the United
States, or Territory thereof, or of any State, any
carrier or carriers as defined in this chapter and a
labor organization or labor organizations duly
designated and authorized to represent employees in
accordance with the requirements of this chapter
shall be permitted–
(a) to make agreements, requiring, as a
condition of continued employment, that within
sixty days following the beginning of such
employment, or the effective date of such
agreements, whichever is the later, all employees
shall become members of the labor organization
representing their craft or class: Provided, That no
such agreement shall require such condition of
employment with respect to employees to whom
membership is not available upon the same terms
and conditions as are generally applicable to any
other member or with respect to employees to
whom membership was denied or terminated for
any reason other than the failure of the employee
to tender the periodic dues, initiation fees, and
assessments (not including fines and penalties)
uniformly required as a condition of acquiring or
retaining membership.
(b) to make agreements providing for the
deduction by such carrier or carriers from the
wages of its or their employees in a craft or class
and payment to the labor organization
representing the craft or class of such employees,
of any periodic dues, initiation fees, and
assessments (not including fines and penalties)
36a
uniformly required as a condition of acquiring or
retaining membership: Provided, That no such
agreement shall be effective with respect to any
individual employee until he shall have furnished
the employer with a written assignment to the
labor organization of such membership dues,
initiation fees, and assessments, which shall be
revocable in writing after the expiration of one
year or upon the termination date of the applicable
collective agreement, whichever occurs sooner.
(c) The requirement of membership in a labor
organization in an agreement made pursuant to
subparagraph (a) of this paragraph shall be
satisfied, as to both a present or future employee
in engine, train, yard, or hostling service, that is,
an employee engaged in any of the services or
capacities covered in the First division of
paragraph (h) of section 153 of this title defining
the jurisdictional scope of the First Division of the
National Railroad Adjustment Board, if said
employee shall hold or acquire membership in any
one of the labor organizations, national in scope,
organized in accordance with this chapter and
admitting to membership employees of a craft or
class in any of said services; and no agreement
made pursuant to subparagraph (b) of this
paragraph shall provide for deductions from his
wages for periodic dues, initiation fees, or
assessments payable to any labor organization
other than that in which he holds membership:
Provided, however, That as to an employee in any
of said services on a particular carrier at the
effective date of any such agreement on a carrier,
who is not a member of any one of the labor
organizations, national in scope, organized in
accordance with this chapter and admitting to
membership employees of a craft or class in any of
said services, such employee, as a condition of
37a
continuing his employment, may be required to
become a member of the organization representing
the craft in which he is employed on the effective
date of the first agreement applicable to him:
Provided, further, That nothing herein or in any
such agreement or agreements shall prevent an
employee from changing membership from one
organization to another organization admitting to
membership employees of a craft or class in any of
said services.
(d) Any provisions in paragraphs Fourth and
Fifth of this section in conflict herewith are to the
extent of such conflict amended.
38a
Appendix F
Agency Fee Requirement
[excerpt from the December 21, 2017 collective
bargaining agreement between Allegiant Air, LLC,
and Transport Workers Union of America Local 577]
SECTION 29
UNION SECURITY
A.
B.
C.
Any Flight Attendant who, on the effective date
of this Agreement, is eligible to become a member
of the Union will do so. A Flight Attendant will
become a Union member upon the completion of
her/his initial probationary period (the first six
(6) months of employment). For the purpose of
this Section, a Flight Attendant shall be
considered a member of the Union if she/he
tenders the initiation fees and periodic dues
uniformly required as a condition of membership.
All new Flight Attendants of the Company hired
on or after the effective date of this Agreement,
shall make application for membership in the
Union within sixty (60) days after the date of
employement with the Company and shall
thereafter maintain membership in the Union as
provided for in Paragraph A of this Section.
In lieu of making application for membership as
provided above in paragraphs A and B, Flight
Attendants may elect instead to pay the Union
each month a contribution for the administration
of the Agreement and the representation of such
Flight Attendant (“service charge”). The service
charges will be calculated in a manner consistent
with the Union’s “Agency Fee formula”, however,
39a
D.
E.
F.
a service charge will not exceed the amount of the
monthly dues paid by members of the Union as
required under this Section.
If a Flight Attendant becomes delinquent in the
payment of her/his initialion fee, membership
dues, or service charge such Flight Attendant
shall be notified by Union via registered mail,
return receipt requested, copy to the Company,
that she/he is delinquent in the payment of
initiation fee, membership dues or service charge
as specified herein and as is subject to loss of all
bidding privileges. Such letter shall also notify
the Flight Attendant that she/he must remit the
requirement payment within a period of fifteen
(15) calendar days, or the Flight Attendant will
lose all bidding privileges.
If upon expiration of the fifteen (15) days, the
Flight Attendant still remains delinquent, the
Union shall, in a written order, certify to the
Company, with a copy to the Flight Attendant,
that the Flight Attendant has failed to remit
payment within the grace period allowed, and is,
therefore, to loss all of her/his bidding privileges.
Such loss of bidding privileges shall be deemed to
be for just cause.
Any determination under the terms of this
Section shall be based solely upon the failure of
the Flight Attendant to pay or tender payment of
initiation fee, membership dues, or service charge
and not because of denial or termination of
membership in the Union upon any other
grounds.
[subsequent sections of Section 29 and other portions
of the collective bargaining act are omitted]
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.