Petition for Writ of Certiorari — Regional Airline Pilot Ass'n v. Wings West Airlines, Inc.

_ vd Supreme Court, &S.

90°1714] FitsD

MAY ¢ 1991

HE CLERK

= ==

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

REGIONAL AIRLINE PILOT ASSOCIATION

and JAMES BISHOP,

Petitioners

V.

WINGS WEST AIRLINES, INC. dba

AMERICAN EAGLE

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

DAVID A. ROSENFELD

(Counsel of Record)

VAN BourG, WEINBERG, ROGER

AND ROSENFELD

875 Battery Street

San Francisco, CA 94111

(415) 864-4000

WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

® Ga. > 60

annie. POO en YS re ee en Fe SN

QUESTION PRESENTED

Does the Railway Labor Act give a district court the

power to enjoin an employer’s unilateral change of work-

ing conditions after a union has been certified as the rep-

resentative of the appropriate class of employees of a

carrier but before the first agreement has been reached

in order to enforce the bargaining obligation created by

the Railway Labor Act?

(i)

il

LIST OF PARTIES

The parties to the proceedings below, and before this

Court are:

1. Regional Airline Pilot Association

2. James Bishop

3. Wings West Airlines, Inc. d/b/a American Eagle

TABLE OF CONTENTS

QUESTION PRESENTED

LIST OF PARTIES

TABLE OF AUTHORITIES |...

OPINIONS BELOW

JURISDICTION .

STATUTORY PROVISIONS |

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

I.

II.

Ill.

IV.

V.

SUMMARY OF THE REASONS THIS PETI-

TION SHOULD BE GRANTED

THE STATUS QUO DOCTRINE UNDER THE

RAILWAY LABOR ACT AND THE WIL-

LIAMS DOCTRINE

THE CONFLICT IN THE COURTS OF AP-

PEALS ARISES OVER A DISPUTE WITH

RESPECT TO THE POWER-GRANTED TO

THE COURTS UNDER THE RLA TO ENJOIN

UNILATERAL CHANGES .

THE NLRA IMPOSES A DUTY TO MAKE NO

UNILATERAL CHANGES FROM THE MO-

MENT OF CERTIFICATION, AND THE RLA

COMPELS THE SAME RESULT

THIS COURT’S WILLIAMS DOCTRINE HAS

BEEN EFFECTIVELY DISCARDED

CONCLUSION .

APPENDIX A ........... Delain rate Sceavese

APPENDIX B

APPENDIX C

APPENDIX D __

APPENDIX E ..

APPENDIX F .....

(iil)

Page

a |

16a

17a

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iv

TABLE OF AUTHORITIES

CASES Page

Chicago & Northwestern Ry Co. v. United Trans-

portation Union, 402 U.S. 570 (1971) — 7

Detroit & Toledo Shore Line R.R. Co. v. United

Transportation Union, 396 U.S. 142 (1969)... 5, 6,7

International Ass’n of Machinists & Aerospace

Workers v. Trans World Airlines, 839 F.2d 809

(D.C. Cir. 1988) aires 4,8

International Ass'n of Machinists Vv. . Transportes

Aeroes Mercantiles Pan American a/k/a Tampa

Airlines, 924 F.2d 1005 (11th Cir. 1991) _......4, 8, 9, 10

JI. Case Co. v. NLRB, 231 U.S. 332 (1944) 2 6

Laborers Health and Welfare Trust Fund v. Ad-

vanced Lightweight Concrete Co., Inc., 484 U.S.

539 (1988) Ra Me Ne et RET PAE EU 11

Litton Financial Printing Division v. NLRB, No.

90-285 Pe PEE 1]

Mike O'Connor Chevrolet-Buick GMC Co., Ine.,

209 NLRB 701 (1974) es Ci de 12

NLRB v. C. & C. Plywood Corp., 385 U.S. 421

(1967) ........ As 11

NLRB v. Katz, 369 U.S. 736 (1962) | = 3, 8, 10, 11

Order of Railroad Telegraphers v. Railway Ez-

press Agency, 321 U.S. 342 (1944) 6

Switehmen’s Union v. National Mediation Board,

320 U.S. 297 (1943) Rae 5

Trans World Airlines, Inc. v. Independent Fede oT O-

tion of Flight Attendants, 489 U.S. (1989). 11

Williams v. Jacksonville Terminal Co., 315 U.S.

386 (1942) aN ok ER EI 4, 6, 7, 8, 9, 10, 12

STATUTES

Be Bs BUR URD oss cvsccecccctsccoast BR Bin SERS AAS, 2

eRe wn ao e -! 6

hs ee Deena = ET OA 2,6

ib lek & 2a Ne 3,12

45 U.S.C. § 155 | , ase 5

og hy ES even nn a lees oa Te 6,7

45 U.S.C. § 160 . 6

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

No, ———

REGIONAL AIRLINE PILOT ASSOCIATION

and JAMES BISHOP,

: Petitioners

WINGS WeEsT AIRLINES, INC. dba

AMERICAN EAGLE

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Petitioners Regional Airline Pilot Association and James

sishop pray that a writ of certiorari issue to review the

judgment of the United States Court of Appeals for the

Ninth Circuit entered in this case on October 9, 1990.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Ninth Circuit is reported at 915 F.2d 1339 and is

printed as Appendix A. The Order of the United States

District Court for the Northern District of California

is unreported and is printed as Appendix B. That court’s

Order Denying Motion to Vacate is unreported and is

printed as Appendix C,

2

JURISDICTION

The judgment of the Court of Appeals for the Ninth

Circuit was entered on October 9, 1990. A timely peti-

tion for rehearing and suggestion for a rehearing en banc

was denied on January 9, 1991. The court’s order is re-

printed as Appendix D. Justice O’Connor signed an or-

der extending the time for filing a petition for writ of

certiorari to and including May 9, 1991. A copy of that

order is printed as Appendix E. This Court has jurisdic-

tion pursuant to 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS

televant provisions of the Railway Labor Act 45 U.S.C.

$$ 151, et seq. are printed as Appendix F.

STATEMENT OF THE CASE

On September 13, 1988 The National Mediation Board

certified the Regional Airline Pilot Assocation (RAPA)

as the designated collective bargaining representative of

the pilots of Wings West Airlines Inc. dba American

Eagle. In the First Amended Complaint For Damages

and Injunctive Relief under the Railway Labor Act

(RLA), RAPA! alleged that Wings West made signifi-

cant changes to the terms of and conditions of employ-

ment of the pilots by withdrawing certain travel pass

benefits which the pilots had previously enjoyed. The

First Amended Complaint alleged that this unilateral

change in working conditions “was done without bar-

gaining with the certified representative, and without

exerting every reasonable effort to make an agreement

concerning working conditions, without considering the

dispute in conference; without settling the dispute in order

to avoid any interruption of commerce, and furthermore

was done in order to interfere with the right of the

1 Petitioners are the labor organization and its President, James

Bishop. For convenience they will be referred to jointly as RAPA.

3

pilots to organize and bargain collectively through rep-

resentatives of their own choosing.”

The Petitioners claimed that this unilateral! change

without bargaining violated four provisions of the Rail-

way Labor Act, viz., 45 U.S.C. § 152 First, Second, Third

and Fourth. On the carrier’s motion to dismiss, the dis-

trict court granted the motion holding that the dispute

was “a ‘minor dispute’ relating to the interpretation or

application of the existing collective bargaining agree-

ment.” App. B pp. la-12a. On petitioners’ motion to

vacate, the district court reaffirmed its view that a minor

dispute existed notwithstanding the fact that both parties

“argue|d] that this cannot be a minor dispute.” App. C

p. 14a.

On appeal the court below rejected the district court’s

view that a “minor dispute” existed. Rather, after noting

that under the National Labor Relations Act “such a

change in working conditions by an employer before the

bargaining process began would be an unfair labor prac-

tice to be remedied by the NLRB; sce NLRB v. Katz,

369 U.S. 736 (1962)” 915 F.2d at 1402; it held that the

Railway Labor Act does not impose the same obligation.

The court held that the Railway Labor Act, although au-

thorizing the courts to “assure the implementation of sec-

tion 2, First through Fourth, in order to carry out the

congressional intent,” 915 F.2d at 1402, did not apply

“where there has been no negotiation process instituted

at all.” /d. at 1403. This holding was supported by the

court’s view that the authority of the courts under the

tailway Labor Act to grant injunctive relief is precluded

unless “steps toward bargaining, mediation, or the other

steps provided in the Act to assist bargaining process have

been undertaken.” /d. at 1403.

*In the Petition for Rehearing and Petition for Hearing en

banc, petitioners asked that the court remand to the district court

to permit them to allege that within the brief period between the

certification (September 13) and the unilateral changes (September

4

REASONS FOR GRANTING THE WRIT

I. SUMMARY OF THE REASONS THIS PETITION

SHOULD BE GRANTED

The structure of the Railway Labor Act is built upon

a system of maintaining the status quo for oftentimes

long periods of time while the parties attempt to work out

a collective bargaining agreement. The status quo means

that the carrier may not change working conditions and

the labor organization may not strike. The entire status

quo scheme has one area of unresolved conflict and that

occurs after a labor organization is certified as the rep-

resentative of a class or craft of employees and before the

first agreement is reached by the parties. Since 1988 three

circuits have faced this question and rendered conflicting

and confused answers to the question of the extent to

which a court may enjoin a carrier’s unilateral changes.

In addition to the court below in this case, most recently

the Eleventh Circuit has ruled on this issue. See, /nter-

national Ass’n of Machinists v. Transportes Aeroes Mer-

cantiles Pan American a/k/a Tampa Airlines, 924 F.2d

1005 (11th Cir. 1991). Three years earlier the D.C. Cir-

cuit faced this issue in /nternational Ass’n of Machinists

& Aerospace Workers v. Trans World Airlines, 839 F.2d

809 (D.C. Cir. 1988), amended, 848 F.2d 232, cert. de-

nied, 488 U.S. 820 (1988). The court below and the D.C.

Circuit held that the court could not enjoin such uni-

lateral changes. The Eleventh Circuit disagreed.

This conflict, as we shall show, arises because of a 1942

ease, Williams v. Jacksonville Terminal Co., 315 U.S. 386

(1942) which each of the circuit courts noted above has

either narrowed considerably or disregarded substan-

tially in light of intervening decisions of this Court.

Moreover, the efforts of the circuit courts to avoid the

29, 1988), the union had “contacted the carrier and was in the

process of arranging the first negotiation session.” (Pet. for Reh.

p. 10). _

5

Williams regime have Jed to an absurd result. These

cases have created a regime whereby carriers are encour-

aged to make unilateral changes during the narrow win-

dow between certification and bargaining and similarly

labor organizations are free to strike before bargaining

and the other statutory processes begin, but not after!

Il. THE STATUS QUO DOCTRINE UNDER THE RAIL-

WAY LABOR ACT AND THE WILLIAMS DOC-

TRINE

The Railway Labor Act establishes an elaborate statu-

tory mechanism for resolving disputes in the railway and

airline industries without the disruption to commerce

caused by a resort to self-help measures by carriers mak-

ing unilateral changes or by unions engaging in strikes.

See, Detroit & Toledo Shore Line R.R. Co. v. United

Transportation Union, 396 U.S. 142 (1969). In Section 2,

Ninth, Congress designated the National Mediation Board

as the agency to resolve disputes over whether a union

shall represent a particular “craft or class” of employees

and to “certify” the designated union as the authorized

collective bargaining representatives." Section 2, Ninth

of the Act mandates that “|u]pon receipt of such certifi-

cation the carrier shall treat with the representative so

certified as the representative of the craft or class.” Sec-

tion 2, First, requires the employer to “exert every rea-

sonable effort to make and maintain agreements concern-

ing ... working conditions” with the certified represen-

tative.

The statutory process is supported by three explicit

“status quo” provisions which forbid unilateral action by

either party prior to exhaustion of the procedures Af the

Act. Section 5, First, 45 U.S.C. § 155, First (no unilat-

eral changes over disputes subject to NMB resolution) :

* The NMB’s jurisdiction over representation disputes has lony

been recognized as exclusive. Switchmen’s Union v. National Medi-

ation Board, 320 U.S. 297 (1943).

6

Section 6, 45 U.S.C. 156 (no unilateral changes after no-

tice to amend) and Section 10, 45 U.S.C. § 160 (no uni-

lateral change where Emergency Board established). Ad-

ditionally this Gourt has recognized an implicit status quo

obligation in the duty to “exert every reasonable effort”

to make agreements imposed by Section 2, First. Detroit

& Toledo Shore Line, supra, 396 U.S. at 151.

Williams stands as the only contrary instance where

the status quo obligation is not recognized by this Court.

Williams turns on two principles that have been subse-

quently rejected by this Court. In Williams, the Court

held that an employer was permitted, while bargaining

with a union, to deal directly with employees and to es-

tablish individual contracts of employment with them.

This conclusion provided the basis for the second rule of

law articulated in Williams which has created the con-

flict in the circuits: namely that the Railway Labor Act

does not preclude an employer from making unilateral

changes in working conditions while the parties are bar-

gaining and before the parties arrive at a complete agree-

ment.

The first proposition which is the underpinning of the

second proposition was decisively rejected two years later.

In J.J. Case Co. v. NLRB, 321 U.S. 332 (1944), the Court

held that an employer undermined and defeated the pur-

poses of the National Labor Relations Act, 29 U.S.C. § 151

et seq. (NLRA) by dealing directly with individual em-

ployees who are represented by a union. This Court con-

currently applied this principle to employers covered by

the RLA. Order of Railroad Telegraphers v. Railway Ex-

press Agency, 321 U.S. 342 (1944).

Williams arose when the employer made changes in the

wages of employees who were then represented by a union

but before a collective bargaining agreement was com-

pleted. The Detroit & Toledo Shore Line case arose when

the carrier announced a unilateral change in work assign-

ments while the parties were exhausting the Act’s media-

7

tion procedures, The question presented to the Court was

whether unilateral changes in matters not covered by the

parties’ collective bargaining agreement, like unilateral

changes in working conditions prohibited by Section 6 of

the Act, were prohibited.' This Court held that the term

“agreements” as used in the statute encompasses not

merely the provisions reduced to writing but the totality

of “actual, objective working conditions and practices,

broadly conceived, which were in effect prior to the time

the pending dispute arose and which are involved in or

related to the dispute.’ 396 U.S. at 153. This Court took

careful pains to question-although not expressly overrule-

the conclusion in Williams that the status quo require-

ments of Section 6 were applicable only to “changes in

agreements.” /d. at 158.

Two years later this Court’s decision in Chicago &

Northwestern Ry Co. v. United Transportation Union,

402 U.S. 570 (1971) signalled a further erosion of the

Williams principle. In that case, the union had exhausted

the Act’s procedures for negotiation and mediation and

was prepared to use the self-help measure of a strike.

The carrier sought an injunction on the basis that Sec-

tion 2, First, required the union to continue to exert every

reasonable effort to make an agreement rather than re-

sorting to self-help. The Court agreed that unilateral ac-

tion could be judicially enjoined to encourage full com-

pliance with the duty to bargain.

Drawn from these cases is a simple proposition: Al-

though Williams held almost 50 years ago that an em-

ployer could make unilateral changes in working condi-

tions even though there was a bargaining representative

* The procedures of Section 6, 45 U.S.C. $156 apply only where

parties give “written notice of an intended chanye in ayreements

affecting rates of pay, rules, or working conditions .. .” Since the

Section 6 notice is limited to change in agreements, it is not appli-

cable to this case.

8

that principle has been severely weakened if not rejected

by intervening decisions of this Court.°

III. THE CONFLICT IN THE COURTS OF APPEALS

ARISES OVER A DISPUTE WITH RESPECT TO

THE POWER GRANTED TO THE COURTS UNDER

THE RLA TO ENJOIN UNILATERAL CHANGES

The first court to consider this issue,® International

Ass’n of Machinists v. Trans World Airlines, supra, rec-

ognized that “the Williams case holding, though weak-

ened, is not dead... {and therefore no district court has

the] power to enjoin uniiateral changes in working con-

ditions |based on] Section 6.” 839 F.2d at 814. It

however found such a power under Section 2, First, albeit

a very limited power which couid not be exercised ‘absent

a showing of unavailability or ineffectiveness of other

remedies.” Jd. at 815.

The couit below followed a somewhat different course.

First, it held that courts do have the jurisdiction to en-

force Section 2, First through Fourth in contrast to the

D.C. Circuit. 915 F.2d at 1403. However it held that no

such injunction could issue, in agreement with the D.C.

Cireuit where “no steps toward bargaining, mediation,

or the other steps provided in the Act to assist the bar-

gaining process have been undertaken.” /d.

The Eleventh Circuit’s more recent opinion in Jnter-

national Ass'n of Machinists v. Tampa Airlines, supra,

takes a broader and conflicting view of the power of a

court to enforce the status quo obligation created by Sec-

5 Each of the three circuits has recognized that the Williams doc-

trine is “weakened”, International Ass'n of Machinists v. Trans

World Airlines, 839 F.2d at 814, “limited” and “narrowed”, Inter-

national Ass'n of Machinists v. Tampa Airlines, 924 F.2d at 1008

and 1009; and “weakening of that strict proscription”, Regional

Airline Pilots v. Wings West Airlines, 915 F.2d at 1403.

® No court had been previously asked to narrow or challenge the

Williams rule.

9

tion 2, First. The court held “that Tampa Airlines vio-

lated the RLA’s duty to bargain in good faith when it

unilaterally changed existing working conditions after

collective bargaining negotiations with IAM had begun.”

924 F.2d at 1010.’

The court specifically rejected the view “that an in-

junction cannot issue until all RLA procedures have been

exhausted” Jd. at 1010. In doing so the court rejected

the “language [of JAM v. Trans World Airlines and

Regional Airline Pilots Ass’n v. Wings West) which might

be interpreted as supporting Tampa Airlines’ position

that an injunction [was foreclosed until the RLA pro-

cedures were exhausted.” Jd. Thus the Eleventh Circuit

has squarely rejected the limitation on injunctive relief

advanced by the D.C. Circuit and the Ninth Circuit that

all procedures under the RLA must be exhausted before

injunctive relief is appropriate.

Additionally, the Eleventh Circuit has unequivocally

held that Section 2, First, establishes a status quo obliga-

tion coextensive with that established under the National

Labor Relations Act. In contradistinction, the D.C. Cir-

cuit and the Ninth Circuit have refused to apply the same

doctrine expressing reluctance to run afoul of the con-

tinued presence of Williams. The Eleventh Circuit’s

adoption of the NLRA’s status quo doctrine was founded

upon this Court decisions which were decided after

Williams:

7In Tampa Airlines, the IAM had been certified and negotiations

had commenced when the carrier’s refusal to bargain consisting

of various unilateral changes occurred. The court held that the

status quo was defined by “the prior, unratified agreement {between

Tampa Airlines and the ousted union|”, 924 F.2d at 1009. The

court noted that Williams could be distinguished because the status

quo could be defined by this unratified agreement. There is no

meaningful difference between the status quo as defined by the

employer’s practices and policies and an agreement which was

neither agreed to nor ratified by a predecessor union which has

been ousted.

10

“As |this Court] noted in Chicago & North West-

ern... the RLA’s and the NLRA’s duty to bargain

in good faith are based on the same underlying

policy :existing rates of pay, rules, and working con-

ditions must be maintained during negotiations be-

cause ‘|t|he bargaining status of a union can be de-

stroyed by going through the motions of negotiating

almost as easily as by bluntly withholding recogni-

tion’ of the union as the bargaining representative”.

Id, at 1010.

There is- no reason expressed in the opinion below why

the RLA bargaining obligation should be treated any

differently other than to note the obvious that the RLA

“does not provide for such an agency [as the NLRB].”

915 F.2d at 1402.

The Eleventh Circuit attempted to avoid a direct con-

flict with Williams” by reading it to be limited to the

narrow situation where there is ‘absolutely no prior his-

tory of any collective bargaining or agreement between

the parties on any matter.” 924 F.2d at 1008. This

reading gives Williams “a small window of remaining

vitality.” /d. at 1009 (fn omitted). The court below re-

jected the view that the Williams window of vitality is

so narrow and held in agreement “with the D.C. Circuit

that the interjection of the federal courts in the bargain-

ing process is not authorized by section 2, First...” 915

F.2d at 1403.

This analysis leads to an absurdity. It leaves carriers

free to make unilateral changes during that brief period

between when the National Mediation Board issues a

certification and bargaining actually begins. It likewise

leaves the union free to strike so long as it does so before

bargaining. Thus there is a “rush” to either make uni-

lateral changes or to strike before bargaining. No re-

gime could be more foreign to the entire status quo pro-

8 Tronically the unilateral changes in Williams were made when

the carrier and the union were negotiating.

11

cedures of the Railway Labor Act. Worse yet this

scheme encoureges carriers to delay bargaining to effect

changes, and unions, that are so inclined, to delay bar-

gaining while they undertake strike activity. Thus the

carrier and the union are encouraged to avoid bargaining

to achieve their ends!

IV. THE NLRA IMPOSES A DUTY TO MAKE NO UNI-

LATERAL CHANGES FROM THE MOMENT OF

CERTIFICATION, AND THE RLA COMPELS THE

SAME RESULT

This Court has “observed in the past that carefully

drawn analogies from the federal common labor law de-

veloped under the NLRA may be helpful in deciding cases

under the RLA.” Trans World Airlines, Inc. v. Inde-

pendent Federation of Flight Attendants, 489 U.S.

at (1989). With this in mind we turn to the NLRA doe-

trines.

In NLRB v. Katz, supra, this Court held “that an em-

ployer’s unilateral change in conditions of employment

under negotiation is... a violation of §8(a)(5) [29

U.S.C. §158(a)(5)], for it is a circumvention of the

duty to negotiate which frustrates the objectives of

* &(a)(5) as much as does a flat refusal.” 369 U.S. at

748, See also, NLRB v. C. & C Plywood Corp., 385 U.S.

421 (1967) (‘violation to make unilateral change during

life of collective bargaining agreement) and Laborers

Health and Welfare Trust Fund v. Advanced Lightweight

Conerete Co., Inc., 484 U.S. 539 (1988) (recognizing vio-

lation to make unilateral change after contract has ex-

pired while negotiations preceding.’

It is also uncontested that the unilateral change doc-

trine applies from the date the union is certified under

the provisions of the NLRA. In fact the employer acts

® This Court has pending an aspect of the unilateral change doc-

trine in Litton Financial Printing Division v. NLRB, No. 90-285

(argued March 20, 1991).

12

at its peril in making any unilateral changes from the

(ate of the election:

“The Board has long held that, absent compelling

economic considerations for doing so, an employer

acts at its peril in making changes in terms and con-

ditions of employment during the period that objec-

tions to an election are pending and the final deter-

mination has not yet been made. And where the final

determination on the objections results in the verifi-

cation of a representative, the Board has held the

employer to have violated Section 8(a) (5) and (1)

for having made such unilateral changes. Such

changes have the effect of bypassing, undercutting,

and undermining the union’s status as the statutory

representative of the employees in the event a cer-

tification is issued. To hold otherwise would allow an

employer to box the union in on future bargaining

positions by implementing changes of policy and

practice during the period when objections or deter-

minative challenges to the election are pending”.

Mike O’Connor Chevrolet-Buick GMC Co., Inc., 209

NLRB 701, 703 (1974), enforcement denied on other

grounds, 512 F. 2d 684 (8th Cir. 1975).

The RLA likewise imposes an equivalent obligation:

“Upon receipt of such certification the carrier shall

treat with the representative so certified as the repre-

sentative of the craft or class for purposes of this

chapter.” 45 U.S.C. § 152, Ninth

Only, as we have shown above, the lingering effects of

Williams interfere with the enforcement of this statutory

command.

V. THIS COURT’S WILLIAMS DOCTRINE HAS BEEN

EFFECTIVELY DISCARDED

The three circuit courts of appeals which have faced

this issue have recognized the moribund nature of the

Williams doctrine. They have however explicitly disagreed

upon the extent to which the status quo obligation may be

enforced. The question is of importance for the rule of

law that will govern action by both carriers and unions

13

after a union is chosen as the representative of the appro-

priate class or craft and until any initial agreement is

achieved. The issue deserves plenary review by the Court.

CONCLUSION

For the above reasons, the petition for a writ of cer-

tiorari should be granted.

Respectfully submitted,

DAVID A. ROSENFELD

(Counsel of Record)

VAN BourcG, WEINBERG, ROGER

AND ROSENFELD

875 Battery Street

San Francisco, CA 94111

(415) 864-4000

APPENDICES

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 89-15335

D.C. No. CV-88-3487-FMS

OPINION

THE REGIONAL AIRLINE PILOTS ASSOCIATION ;

JAMES BISHOP,

Plaintiffs-A ppellants,

v.

WINGS WEsT AIRLINES, INC., dba AMERICAN EAGLE,

Defendant-A ppellee.

Appeal from the United States District Court

for the Northern District of California

Fern M. Smith, District Judge, Presiding

Argued and Submitted

April 20, 1990—-San Francisco, California

Filed October 9, 1990

Before: Procter Hug, Jr. and Mary M. Schroeder,

Circuit Judges, and James A. von der Heydt,”

District Judge.

* The Honorable James A. von der Heydt, Senior United States

District Judge for the District of Alaska, sitting by designation.

2a

Opinion by Judge Hug

‘ COUNSEL

David A. Rosenfeld, Van Bourg, Weinberg, Roger” &

Rosenfeld, San Francisco, California, for the plaintiffs-

appellants.

Alexander P. Madar, Forth Worth, Texas; Barbara S.

de Oddone, Littler, Mendelson, Fastiff & Vichy, San

Francisco, California, for the defendant-appellee.

OPINION

HUG, Circuit Judge:

The central issue in this case is whether the airlines’

unilateral change in working conditions, immediately

after the union’s certification as representative of the air-

lines’ employees but before the collective bargaining proc-

ess had begun, was a violation of section 2, First through

Fourth of the Railway Labor Act (“RLA”), 45 U.S.C.

§ 152. First through Fourth (1982). The change in work-

ing conditions involved a change in travel pass privileges.

The district court held that because this was a “minor

dispute” to which the arbitration provisions of the RLA

applied, it lacked jurisdiction to consider the matter. We

hold that there is federal court jurisdiction to consider the

application of section 2, First through Fourth, but affirm

on the basis that the complaint fails to state a claim for

relief.

I. Facts

Wings West is an airline carrier within the meaning of

section 1, First of the RLA, 45 U.S.C. § 151, First. Re-

gional Airline Pilots Association (“RAPA”) is a labor

union, certified on September 13, 1988 by the National

Mediation Board as the representative of the Wings West

pilots.

RAPA and one of its members, pilot James Bishop,

alleged in the First Amended Complaint that during the

3a

period when the National Mediation Board was conduct-

ing an election to determine whether RAPA would repre-

sent the pilots, Wings West, “failed and refused to pro-

vide pilots” certain travel benefits which had been previ-

ously promised.’ Specifically, the complaint alleged that

Wings West had promised to provide pilots a “D-2 An-

nual Pass Card,” but that Wings West failed to provide

the D-2 passes in order to induce the pilots not to join,

organized, assist in organizing, or remain members of

RAPA, and that this was in violation of provisions of the

RLA. See 45 U.S.C. § 151, Fourth.

The second part of the complaint concerned conduct oc-

curring after RAPA was certified as the union. The

complaint alleged that on September 29, sixteen days after

RAPA’s certification, Wings West withdrew certain other

pass privileges, which had previously been given to the

pilots. The complaint alleged that the changes were:

done without bargaining with a certified representa-

tive, and without exerting every reasonable possible

effort to make an agreement concerning working

conditions, without considering the dispute in con-

ference, ... [the changes were made] in order to

interfere with the rights of pilots to organize and

bargain collectively through representatives.

The complaint alleged that withdrawing the pass benefits

was a violation of section 2, First, Second, Third and

Fourth of the RLA.

Overall, RAPA’s complaint sought damages for the

denial of the D-2 passes prior to certification and injunc-

tive relief to restore those benefits withdrawn on Septem-

ber 29, after certification, as well as damages for the

withdrawal of those benefits.

1 With respect to Bishop, the complaint was brought as a class

action and RAPA brought the action in a representative capacity

on behalf of the pilots.

4a

The district court granted summary judgment in favor

of Wings West on the grounds that it lacked jurisdiction

because the dispute at issue was either a “minor dispute”

or a “representational dispute.”

II. Minor Dispute

After reviewing the First Amended Complaint on its

merits, the district court held that the dispute was prop-

erly classified as a minor dispute, over which the Na-

tional Mediation Board has exclusive jurisdiction.

The Supreme Court recently held that when determin-

ing if a dispute is minor,

fone} looks to whether a claim has been made that

the terins of an existing agreement either establish

or refute the presence of a right to take the disputed

action. The distinguishing feature of [a minor dis-

pute| is that the dispute may be conclusively re-

solved by interpreting the existing agreement.

Consolidated Rail Corp. v. Ry. Labor Exec. Ass’n, 109

S. Ct. 2477, 2481 (1989). See also Elgin, Joliet & BE. Ry.

Co. v. Burley, 325 U.S. 711, 722-23 (1945) (minor dis-

putes are controversies which involve the application or

interpretation of an existing collective bargaining agree-

ment); Switchmen’s Union of N. Am. v. Southern Pace.

Co., 398 F.2d 443, 447 (9th Cir. 1968) (“where the posi-

tion of one or both of the parties is expressly and argu-

ably predicated on the terms of the agreement, .. . the

question .. . involves a minor dispute”).

Here, no agreement existed, or had ever existed, so the

dispute could not be “conclusively resolved by interpreting

th existing agreement.” Therefore, we find that the dis-

trict court erroneously labeled the dispute as a minor

dispute.

III. Representational Dispute

The district court alternatively found that it lacked

jurisdiction because the dispute was representational.

5a

Both parties agreed at oral argument that because RAPA

was certified by the Board on September 13, 1988,

RAPA’s claims of interference and discrimination during

the representational election became moot upon RAPA’s

certification.

IV. Section 2, First and Second

RAPA contends that the change in pass benefits after

September 19 was a violation of section 2, First and Sec-

ond because Wings West did not use the bargaining proc-

ess and, in fact, distorted the bargaining process by a pre-

bargaining reduction in benefits. Wings West, on the

other hand, contends that since no collective bargaining

agreement had ever been in effect, it was entitled to exer-

cise its managemnt prerogative of changing working con-

ditions and that the district court lacked jurisdiction to

interfere with these changes.

Wings West notes that section 6 of the RLA, 45 U.S.C.

§ 156, does contain a specific prohibition against the car-

riers changing the status quo with regard to pay and

working conditions pending completion of the bargaining

process. However, it observes that this section, by its

terms, only applies to situations when a collective bar-

gaining agreement is in effect and the carrier intends to

make the change at the termination of the agreemnt.*

See Detroit & Toledo Shore Line R.R. Co, v. United

Transp. Union, 396 U.S. 142, 158 (1969); Williams ».

Jacksonville Terminal Co., 315 U.S. 386, 400 (1942).

RAPA acknowledges that section 6 does not apply.

However, RAPA still contends that the statutory man-

date of section 2, First and Second of the RLA requires

“Section 6 of the RLA, 45 U.S.C. § 156, reads:

Carriers and representatives of the employees shall give at

least thirty days’ written notice of an intended change in

agreements affecting rates of pay, rules, or working conditions,

and the time and place for the beginning of the conference

between the representatives of the parties. .

6a

a carrier to resort to the bargaining process before in-

stituting unilateral changes.

The RLA, section 2, First and Second, states:

First. Duty of carriers and employees to settle

disputes.

It shall be the duty of all carriers, their officers,

agents, and employees to exert every reasonable effort

to make and maintain agreements concerning rates

of pay, rules, and working conditions, and to settle al!

disputes, whether arising out of the application of

such agreements or otherwise, in order to avoid any

interruption to commerce or to the operation of any

carrier growing out of any dispute between the car-

rier and the employees thereof.

Second. Consideration of disputes by representatives

All disputes between a carrier or carriers and its

or their employees shall be considered, and, if possi-

ble, decided, with all expedition, in conference be-

tween representatives designated and authorized so

to confer, respectively, by the carrier or carriers and

by the employees thereof interested in the dispute.

RAPA asserts that the federal courts have jurisdiction to

enforce these sections and that it is contrary to the spirit

of these provisions to permit unilateral changes before the

bargaining starts. Thus, RAPA contends that it is within

the jurisdiction of the federal courts to prevent such

activity by the carrier, as being disruptive of the bargain-

ing process. It is clear that under the National Labor

Relations Act (“NLRA”) such a unilateral change in

working conditions by an employer before the bargaining

process began would be an unfair labor practice to be

remedied by the NLRB. See NLRB v. Katz, 369 U.S. 736

(1962). However, we must be careful in transposing

concepts from the NLRA to its predecessor, the RLA.

In the NLRA, an administrative agency is provided

that develops expertise in overseeing this bargaining proc-

7a

ess with the authority to issue orders enforceable by the

federal courts to rectify unfair practices. The RLA, on

the other hand, does not provide for such an agency. The

Mediation Board is not such an agency. Its designated

function is to mediate and not to order one party or the

other to take or decrease from action. See Airline Pilots

Ass'n, Int’l v. Transamerica Airlines, Inc., 817 F.2d 510,

513 (9th Cir.), cert. denied, 484 U.S. 963 (11987). Even

in the one designated area of jurisdictional disputes, in

which the Board is authorized to make a final decision,

Congress took special precautions to allow appointment of

a separate committee to make decisions on certification so

as not to jeopardize the Board’s primary function as a

neutral in the mediation process. See Chicago & N.W. Ry.

Co. v. United Transp. Union, 402 U.S. 570, 580-81 (1971)

(citing S. Rep. No. 1065, 73d Cong., 2d Sess., p. 3).

We find that the federal courts definitely have the au-

thority to assure the implementation of section 2, First

through Fourth, in order to carry out congressional in-

tent. See Transamerica Airlines, 817 F.2d at 513. The

question is how much intrusion into the bargaining proc-

ess is proper under the mandate of those provisions. It is

doubtful that Congress intended the federal courts to

operate as the NLRB does under the detailed statutory

prescriptions of the NLRA. The language of section 2,

First through Fourth, is very general, leaving the impres-

sion that the federal courts’ obligation is to oversee the

broad structure of the process and prevent major devia-

tions, not to be involved in particulars of the bargaining

process.

Wings West relied heavily on Williams, in which the

Supreme Court faced a factual situation very similar to

this and declined to step into the bargaining process. In

Williams, no collective bargaining agreement existed and

a union had been recently certified. The new union had

requested a conference to negotiate for an initial agree-

ment which would include the accounting for tips. De-

Ka

spite this fact, the employer unilaterally changed how em-

ployees would account for their tips. The Court concluded:

Because the carrier was, by the [Railway Labor|

Act, placed under the duty to exert every effort to

make collective agreements it does not follow that,

pending those negotiations, where no collective bar-

gaining agreements are or have been in effect, the

‘arrier cannot exercise its authority to arrange its

business relations with its employees in the manner

shown in this record. As we have stated in discuss-

ing the Jacksonville case, the Railway Labor Act

dealt with collective bargaining agreements only, and

not within the employment of individuals.

Williams, 315 U.S. at 402. Hence, in Williams, the car-

rier was permitted to make unilateral changes in rates

of pay, rules or working conditions.

The Supreme Court, in Chicago & N.W. Ry., distin-

guished Williams and enjoined a strike in order to en-

force the duty to bargain as mandated by section 2, First.

In that case, the parties had exhausted the formal proce-

dures of the RLA and the union threatened to strike.

The Court held that Congress “intended to enforcement of

£2 First to be overseen by appropriate judicial means,”

and enjoined the strike. Chicago & N.W. Ry., 402 US. at

581. The majority opinion drew a careful line in this

regard, The majority found that an injunction under see.

tion 2, First, was proper to prevent a strike when it was

the only practical, effective means of enforcing the

duty to exert every reasonable effort to make and

maintain agreements....

Id, at 583. The dissenting opinion, written by Justice

Brendan, and joined by Justices Black, Douglas. and

White emphasized the concern of those Justices that this

was undue interference with the bargaining process.

The majority opinion reconciled this concern, emphasiz

ing that only in rare occasions should the court interfere:

Ya

“(T]he policy of the Act suggests that the courts should

hesitate to fix upon the injunctive remedy for breaches

of duty owing under the labor laws unless that remedy

alone can effectively guard the plaintiff’s right.” /d. at

582 (citation omitted).

The D.C. Circuit, in International Ass'n of Machinists

v. Trans World Airlines, Inc., 839 F.2d 809 (D.C. Cir.),

amended, 848 F.2d 232 (per curiam), cert. denied, 109

S. Ct. 62 (1988), addressed a situation similar to the one

before us wherein the union had been certified by the

National Mediation Board, and the district judge had

ordered the carrier to commence bargaining and enjoined

prospective unilateral changes in the working conditions.

The carrier appealed and contended that the injunction

could not properly be entered by the district court. The

circuit court noted that the issue fell within the direct

proscriptions of Williams but discerned the weakening of

that strict proscription in the holding of the Court in

Chicago & N.W. Ry.

The D.C. Circuit opinion stated:

[Tl}he Williams case holding, though weakened, is not

dead... . The independent duty found by the Court

under Section 2, First, in the Chicago and North

Western case is a limited one. The Court expressly

held that the injunctive remedy would be available

only “where a strike injunction is the only practical,

effective means of enforcing the command of & 2

First.” Plainly, the same restrictive test should ap-

ply in enjoining self-help by management.

Trans World Airlines, 839 F.2d at $14 (citation omitted).

The D.C. Circuit went on to point out that in Chicago &

N.W. Ry. all of the procedures for negotiations, media-

tion, and the period for cooling off had been attempted

and failed, and a strike was imminent before resort was

had to the injunctive measure. Here, as in the D.C. Cir-

cuit case, no steps toward bargaining, mediation, or the

10a

other steps provided in the Act to assist the bargaining

process had been undertaken. We agree with the D.C.

Circuit that the interjection of the federal courts in the

bargaining process is not authorized by section 2, First,

as interpreted by Williams and Chicago & N.W. Ry. We

only differ with the D.C. Circuit in that we do not con-

clude that this is a jurisdictional ruling. Our view is

that jurisdiction exists to enforce section 2, First through

Fourth, but that the prerequisites for stating a claim

under the authority of Chicago & N.W. Ry. do not exist

under the facts of this case where there has been no nego-

tiation process instituted at all.

V. Conclusion

The district court had jurisdiction under section 2,

First through Fourth, but the complaint fails to state

a claim for relief.

AFFIRMED.

lla

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

No. C-88-3487-F MS

THE REGIONAL AIRLINE PILOT ASSOCIATION and

JAMES BISHOP,

Plaintiff (s),

VS.

WINGS WEsT AIRLINES, INc., dba AMERICAN EAGLE,

Defendant (s).

ORDER

[Filed Dec. 21, 1988]

THIS MATTER came on regularly for a hearing on

December 14, 1988 at 10:60 a.m. on Wings West Air-

lines, Inc. motion to dismiss the Regional Airline Pilot

Association and James Bishop’s complaint. The plaintiffs

have also filed a motion to amend their complaint, and a

request for injunctive relief.

The plaintiffs’ motion to file an amended complaint is

hereby GRANTED. Fed. R. Civ. P. 15(a) (“leave shall

be freely given when justice so requires’’).

However, reviewing the amended complaint on_ its

merits, this Court finds that the National Mediation

Board has exclusive jurisdiction over the dispute in that

this is a ‘minor dispute’ relating to the interpretation or

application of the exis‘ing collective bargaining agree-

ment. See IAM v. Aloha Airlines. Inc., 776 F.2d 812, 815

(9th Cir. 1985). Accordingly, this Court has no subject

12a

matter jurisdiction over the dispute, and the motion to

dismiss the action is hereby GRANTED. Plaintiff’s mo-

tion for injunctive relief is hereby DENIED.

SO ORDERED.

DATED: December 20, 1988

/s/ Fern M. Smith

FERN M. SMITH

United States District Judge

13a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

No. C-88-3487-FMS

THE REGIONAL AIRLINE PILOT ASSOCIATION and

JAMES BISHOP,

Plaintiff (s),

Vs.

WINGS WEsT AIRLINES, INC., dba AMERICAN EAGLE,

Defendant (s).

ORDER DENYING MOTION TO VACATE

[Filed Mar. 3, 1989]

This matter is before the Court on plaintiff’s motion to

vacate an Order and Judgment entered by this Court on

December 21, 1988. The plaintiff claims this Court er-

roneously determined that the dispute between the plain-

tiffs and the defendants was a minor dispute under the

Railway Labor Act.!

The Railway Labor Act, 45 U.S.C. ch. 8, sections 151

et seq., as originally enacted, created procedures and Fed-

eral administrative machinery to facilitate the selection of

bargaining representation and the reaching of agree-

ments. See generally, Elgin, J. & E.R. Co. v. Burley, 325

U.S. 711 (1945), aff'd on rehearing, 327 U.S. 661 (1946).

1The plaintiff also requests that this Court permit the First

Amended Complaint to be filed. The Court’s previous Order granted

the plaintiff leave to amend the First Amended Complaint, and

specifically considered the First Amended Complaint in reaching its

ruling.

l4a

The National Mediation Board’s (formerly the Board of

Mediation’ purpose is to hear and determine initially

employer-employee disputes over the interpretation and

applicability of existing contracts. Where the position of

one or both of the parties is expressly or arguably pred-

icated on the terms of an agreement, as illuminated by

long-standing practices, the merits of each sides position

is a minor dispute. See Switchman’s Union v. South Pa-

cific Co., 398 F.2d 443 (9th Cir. 1968).

In this case, there is no collective bargaining agree-

ment in place, nor has there ever been. Therefore, both

sides argue that this cannot be a minor dispute. We dis-

agree. The plaintiff argued strenuously and vociferiously

at the hearing that this matter involves two issues:

1; Did Wings West interfere with the pilots’ right to

representation prior to certification?; 2) Are the pilots

entitled to the continuation, post-certification, of certain

benefits previously conferred upon them through long-

standing practices, i.e., “jumpseat” privileges?

The fact that the prior agreement between the pilots

and employer was not part of a formal collective bargain-

ing agreement should not change the analysis of the prob-

lem, or the way in which it fits into the scope and intent

of the Act. While this may not be “a minor dispute” by

law, it is certainly one in fact. See O’Donnell v. Wein

Air Alaska, 551 F.2d 1141, 1147 (9th Cir. 1977); Rail-

way Labor Executives Ass’n v. Atchinson, T. & S.F. Ry.

Co., 430 F.2d 994, 997 (1970). If controlling formal doc-

uments do not unambiguously answer the dispute, Con-

gress intended that an Adjustment Board shall be the

tribunal of first resort. /d.

Notwithstanding plaintiff’s attempt to characterize the

facts herein as a tort action in violation of a statutory

duty, the provisions of the Railway Labor Act “relate to

matters of substance, not form’’, and if

“the dispute grows out of the employment relation-

ship and, in the final analysis, involves an attempt

15a

to impose a right which is incident to that relation-

ship, the statutory form is the Adjustment Board,

absent a clear expression of legislative policy to the

contrary.”

Railway Labor Execs., 430 F.2d at 997.

In this matter, the issues of interference with repre-

sentational rights and the interpretation and effect, if

any, of long-standing practices between employer and

employees are inextricably bound together. Neither is a

“major dispute’, either standing alone or in combination.

Therefore, whether this Court calls them “minor” or

“representational” is putting form over substance. How-

ever labeled, this is the type of dispute intended to be re-

solved by a mediation board, absent any intrusion by the

courts. Accordingly, and good cause appearing,

IT IS HEREBY ORDERED that the plaintiff’s motion

to vacate this Court’s Order and Judgment of December

21, 1988 is DENIED.

DATED: March 3, 1989

/s/ Fern M. Smith

FERN M. SMITH

United States District Judge

16a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 89-15335

D.C. No, CV-88-3487-FMS

THE REGIONAL AIRLINE PILOT ASSOCIATION ;

JAMES BISHOP,

Plaintiffs-A ppellants,

V.

WINGS WEsT AIRLINES, INC., dba AMERICAN EAGLE,

Defendant-A ppellee.

ORDER

[Filed Jan. 9, 1991]

Before: HUG and SCHROEDER, Circuit Judges, and

von der HEYDT"%, District Judge.

The panel as constituted in the above case has voted to

deny the petition for rehearing. Judges Hug and Schroe-

der have voted to reject the suggestion for a rehearing en

banc, and Judge von der Heydt recommends rejection of

the suggestion.

The full court has been advised of the suggestion for

en banc rehearing, and no judge of the court has re-

quested a vote on it. Fed. R. App. P. 35(b).

The petition for rehearing is denied and the suggestion

for a rehearing en banc is rejected.

* The Honorable James A. von der Heydt, Senior United States

District Judge for the District of Alaska, sitting by designation.

17a

APPENDIX E

SUPREME COURT OF THE UNITED STATES

No. A-726

REGIONAL AIRLINE PILOT ASSOCIATION and

JAMES BISHOP,

Petitioners

V.

WINGS WEST AIRLINES, INC., dba AMERICAN EAGLE

ORDER

[Filed Apr.2, 1991]

UPON CONSIDERATION of the application of coun-

sel for the petitioner,

IT IS ORDERED that the time for filing a petition

for a writ of certiorari in the above-entitled case, be and

the same is hereby, extended to and including May 9,

1991.

/s/ Sandra D. O’Connor

Associate Justice of the Supreme

Court of the United States

Dated this 27th day of March, 1991.

18a

APPENDIX F

STATUTORY PROVISIONS INVOLVED

$152. General duties

First. Duty of carriers and empioyees to settle disputes

It shali be the duty of all carriers, their officers, agents,

and employees to exert every reasonable effort to make

and maintain agreements concerning rates of pay, rules,

and working conditions, and to settle all disputes, whether

arising out of the application of such agreements or other-

wise, in order to avoid any interruption to commerce or

to the operation of any carrier growing out of any dispute

between the carrier and the employees thereof.

Second. Consideration of disputes by representatives

All disputes between a carrier or carriers and its or

their employees shall be considered, and, if possible, de-

cided, with all expedition, in conference between repre-

sentatives designated and authorized so to confer, respec-

tively, by the carrier or carriers and by the employees

thereof interested in the dispute.

Third. Designation of representatives

Representatives, for the purposes of this chapter, shall

be designated by the respective parties without interfer-

ence, influence, or coercion by either party over the desig-

nation of representatives by the other; and neither party

shall in any way interfere with, influence, or coerce the

other in its choice of representatives. Representatives of

employees for the purposes of this chapter need not be

persons in the employ of the carrier, and no carrier shall,

by interference, influence, or coercion seek in any manner

to prevent the designation by its employees as their repre-

sentatives of those who or which are not employees of

the carrier.

19a

Fourth. Organization and collective bargaining; free-

dom from interference by carrier; assistance in

organizing or maintaining organization by car-

rier 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 representa-

tive, or other agency of collective bargaining, or in per-

forming any work therefor, or to influence or coerce em-

ployees 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 or-

ganizations, 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, indi-

vidually, or local representatives of employees from con-

ferring with management during working hours without

loss of time, or to prohibit a carrier from furnishing free

transportation to its employees while engaged in the busi-

ness of a labor organization.

Ninth. Disputes as to identity of representatives; desig-

nation by Mediation Board; secret elections

If any dispute shal] arise among a carrier’s employees

as to who are the representatives of such employees desig-

20a

nated and authorized in acordance with the requirements

of this chapter, it-shall be the duty of the Mediation

Board, upon request of either party to the dispute, to in-

vestigate such dispute and to certify to both parties, in

writing within thirty days after the receipt of the invo-

cation of its services, the name or names of the individ-

uals or organizations that have been designated and au-

thorized to represent the employees involved in the dis-

pute, and certify the same to the carrier. Upon receipt of

such certification the carrier shall treat with the repre-

sentative so certified as the representative of the craft

or class for the purposes of this chapter. In such an in-

vestigation, the Mediation Board shall be authorized to

take a secret ballot of the employees involved, or to utilize

any other appropriate method of ascertaining the names

of their duly designated and authorized representatives in

such manner as shall insure the choice of representatives

by the employees without interference, influence, or coer-

cion exercised by the carrier. In the conduct of any elec-

tion for the purposes herein indicated the Board shall

designate who may participate in the election and estab-

lish the rules to govern the election, or may appoint a

committee of three neutral persons who after hearing

shall within ten days designate the employees who may

participate in the election. The Board shall have access to

and have power to make copies of the books and records

of the carriers to obtain and utilize such information as

may be deemed necessary by it to carry out the purposes

and provisions of this paragraph.

a oe