Petition for Writ of Certiorari — Transportes Aereos Mercantiles Pan Americanos, S. A. v. International Ass'n of Machinists & Aerospace Workers

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; FILED

No. | JUN 2 8 1991

ab Sian ) OFFICE UF THE CLERK

1 -< £ Supreme Court, ue

Supreme Court of the Anited States

OCTOBER TERM, 1991

TRANSPORTES AEREOS MERCANTILES PAN

AMERICANOS, 3.A., a/k/a TAMPA AIRLINES,

Petitioner,

Vv.

INTERNATIONAL ASSOCIATION OF MACHINISTS AND

AEROSPACE WORKERS; DISTRICT 100, INTERNATIONAL

ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS,

Respondents.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

STUART A. GOLDSTEIN JOSEPH L. MANSON, III*

LAW OFFICES OF DEAN R. BRENNER

STUART A. GOLDSTEIN VERNER, LIIPFERT, BERNHARD,

444 Brickell Avenue MCPHERSON AND HAND, CHARTERED

Suite 300 901 15th Street, N.W.

Miami, Florida 33131 Suite 700

(305) 358-5800 Washington, D.C. 20005

(202) 371-6000

*Counsel of Record

Attorneys for Petitioner

Transportes Aereos Mercantiles Pan

Americanos, S.A., a/k/a Tampa Airlines

PRESS OF BYRON 8. ADAMS, WASHINGTON, D.C. (202) 347-8203

QUESTION PRESENTED

Does an air or rail carrier commit a per se violation

of section 2, First of the Railway Labor Act by chang-

ing its employees’ pay, rules, or working conditions

pending the compietion of bargaining with a newly

certified union, where no collective bargaining agree-

ment is or has been in effect?

STATEMENT OF INTERESTED PERSONS

All parties to this case are named in the caption.

Pursuant to Rule 29.1 of the Rules of this Court,

petitioner Transportes Aereos Mercantiles Pan Amer-

icanos, S.A., a/k/a Tampa Airlines hereby states that

it does not have any non-wholly owned subsidiary or

any parent corporation.

iii

TABLE OF CONTENTS

ot :

STATEMENT OF INTERESTED PERSONS ..............

EP REEEEE EID cccecsoccesscesersevecevesceovorescees

INET ccasttencsuuiscovevssececeveestereroreestoussecees

A. The Circuits Are Split On The Fundamental

Question Of Federal Labor Law Raised

Herein; And, TWA, Wings West, And Air

Micronesia Support Tampa’s Position .........

. The Eleventh Circuit Improperly Expanded

Detroit & Toledo And Erroneously Adopted

Katz’s NLRA Holding To Decide This RLA

en oe pnocdncosevevece

1. The Eleventh Circuit Stretched Detroit &

poe Beyond The RLA’s Outer

Oe cupnsesers

2. The Eleventh Circuit Erred By Importing

Katz’s Holding Under The NLRA To Gov-

ern The RLA Because The Two Statutes

Establish Very Different Regimes For

Collective Bargaining .................c.cseseeeeeees

aonNnn fr Wo WwW WwW WD Ss

C. The Eleventh Circuit’s Distinction Between

a rg Changes Made Before Bargain-

ing Begins, And a Changes Made

Thereafter, But Before A Contract Is

Reached, Conflicts With The RLA .............. 18

I eacdakenncttscdsticckcnidibtalenteyneetsterpisetvesecies 20

APPENDICES

a A, Opinion of the Court of Appeals

bran 27, IIIT wiestisicseasnanenasnenbetdabstlettaonties la

alee B, Preliminary Injunction Entered

by tthe District Court

CS Be I titiijccninerenennscibitinissetiiiaiibewes l4a

Appendix C, Order of the Court of Appeals on

Petition(s) for Rehearing and Suggestion(s) of

Rehearing En Banc

CIES III "chi diahiaitereycesiciinisontenapstenenenssecornsnerees 27a

Appendix D, Order of the Court of Appeals

Staying Issuance of the Mandate

Bei ee eieetihchaddncactatictwiliicsedsnensertesseoese 29a

Appendix E, Affidavit of Rodrigo Arboleda

CS GI iitcsovccbdinicnetninditbnidtitiicene 3la

Appendix F, Orders of the District Court and

the Court of Appeals in Union of Flight At-

tendants v. Air Micronesia, Civil No. 85-0125,

ublished a4 op. (D. Hawaii A? 30, 1988),

aff'd, d, unpublished slip op., Case No. 88-15754

(9th ‘Cir. SEE Sy SUED sitindncsifevsbiantsccconilacassee 36a

Appendix G, Railway Labor Act Provisions... 55a

TABLE OF AUTHORITIES

Page

Cases

Bi-Rite Foods, 147 N.L.R.B. 59, 64-65 (1964) ....... 18

Blum v. Stenson, 465 U.S. 886, 896 (1984) ........... 20

Brotherhood of R.R. Trainmen v. Jacksonville Ter-

minal Co., 394 U.S. 369 (1969) ............cccccccees 15

Brotherhood of Ry. Clerks v. Florida East Coast

Ry. Co., seo Be ME ITT nhconincnadsdsonenssdoonee 2

Burli Co. v. Bhd. of Maintenance of

tag occas 481 U.S. 429 (1987) ........... 2,10,17

ain and North Western Ry. Co. v. United

Transp. Union, 402 U.S. 570 (1971) .............. 10,11

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

Transp. Union, 396 U.S. 142 (1969) ............. passim

International Ass’n of Machinists & Aerospace

Workers v. NMB, 930 F.2d 45 (D.C. Cir.

DED :ctniiesddbividbidnapditaniadbatiiaaiteinenuinduccotvicceees 16

International Ass’n of Machinists & Aerospace

Workers v. NMB, 425 F.2d 527 (D.C. Cir.

REE BRAT SR Dasher ie 16

International Ass’n of Machinists & Aerospace

Workers v. Street, 367 U.S. 740 (1961) .......... 10

International Ass’n of Machinists & Aerospace

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

809 (D.C. Cir.), amended on other grounds, 848

F.2d 232 (D.C. Cir.), cert. denied, 488 U.S. 820

CUNT , sicciennisneinpiclatinebvticasckiahilencituniocmuiamedadal passim

Lan Chile Airlines v. NMB, 115 L.R.R.M. 3655

ee | I Niki bieiaactendtiiactacitendoanbdibdunne 16

Litton Financial Printing Division v. NLREB,

No. 90-285, 59 U.S.L.W. 4641 (June 11,

DN ivicdcdnliciceichdnicicasencitamachalaiibiauibdbiinipsiinacds 17

Table of Authorities Continued

Page

Local 808, Building Maintenance, Service & R.R.

Workers v. NMB, 888 F.2d 1428 (D.C. Cir.

FID sxsicavnscicencssisitiiaiiiaaiaiiciaaddiaiaabe eens, 16

Nabors Trailers, Inc. v. NLRB, 910 F.2d 268 (5th

Cir. 1990), cert. granted, No. 90-1165, 59

U.S.L.W. 3735 (April 30, 1991) ..................... 17

NLEB v. Citizens Hotel Co., 326 F.2d 501 (5th Cir.

SID sdnincensshenicedcisetiuusewedancinianpliaaiamaabisabunies 17

NLRB v. Katz, 369 U.S. 736 (1962) ...............ee passim

Pittsburgh & Lake Erie R.R. Co. v. Ratlway Labor

Executives Ass’n, 491 U.S. 490 (1989) ........... 14

Regional Airline Pilots Ass’n v. Wings West Air-

lines, Inc., 915 F.2d 1399 (9th Cir. 1990) .. 4,9,11,12

Toibb v. Radloff, No. 90-368, 59 U.S.L.W. 4633,

GUE, Gn 35: SORE iscevscinensintiinieiinn 20

Trans World Airlines v. Independent Fed’n of Flight

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

Union of Flight Attendants v. Air Micronesia, Inc.,

Civil No. 85-0125, unpublished slip op. (D. Ha-

waii Aug. 30, 1988), affd unpublished slip op.,

Case No. 88-15754 (9th Cir. May 10, 1990)... 4,9,12

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

Pe CREED scscneccturetchieseebieienndedebeslabaiiadalamabins passim

Statutes

District and Circuit Court Judges - Appointments,

92 Stat. 1629, 28 U.S.C. § 18387 ...............c000. 7

Federal Question Jurisdictional Amendments Act of

1980,

O4 Stat. 2960, 26 U.S.C. § 1BB) .......0.00020...-... 7

Judiciary and Judicial Procedure,

62 Stat. 928, 28 U.S.C. § 1254(1) ................... 3

Labor Management Relations Act, 61 Stat. 153

Pr Re eats Se TN aarbskidilitnineldschichicdisinnehcaitiangadllatabebailinive 18

29 U.S.C. §§ 176-180 ............... eisdehabaeninlipisiess 16

vii

Table of Authorities Continued

Page

National Labor Relations Act, 49 Stat. 449

Se RT MIE, sistcovevhasecevasheavesesscocceoss passim

Se rE oo sci rscnccnevasueuduonbectenevnvedton 17

a ei iairrerensesesvtnincersetvesessedsieinens 17

Be IE Saemsccsscessccsedsteonsencyessneeenes 17

Railway Labor Act, 44 Stat. 577, 49 Stat. 1189 (as

amended)

i eB D,. cncivcneseectsnvecsatsensnenveneens passim

te I hibhcditnliitisinciavncineeccenssnccesene 19

i I irrancinecisscncssenseceonensvereeses passim

ae I saceverecicnxccterscnssccsnsatuns 15

IEE incrcctnctvasitedenserssstocvossaetes 13

5 Aa eS a 10,13,15

Oe I Bins icserntncecdedesicevescudecsonucteons 15

os nicsmpabbenebaniinbenetel 13,15

Regulations and Rules

I oo cc sdsnsncensevnntconeensinesnees ii

Other

R. Gorman, Labor Law - Basic Text (1976)

RS te Ee ode iin deciansavstobebeeiecsenvionses 16

ele ey ae i Oi NIN Ciiserecnneesecrcesinnettnsscsuie 18

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1991

No.

TRANSPORTES AEREOS MERCANTILES

PAN AMERICANOS, S.A., a/k/a

TAMPA AIRLINES,

Petitioner,

INTERNATIONAL ASSOCIATION

OF MACHINISTS AND AEROSPACE

WorRKERS; DISTRICT 100,

INTERNATIONAL ASSOCIATION

OF MACHINISTS AND AEROSPACE WORKERS,

Respondents.

PETITION FOR WRIT OF

CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

Transportes Aereos Mercantiles Pan Americanos,

S.A., a/k/a Tampa Airlines (““Tampa’’) petitions this

Court to review the decision below holding that an

air or rail carrier may not change employee pay, rules,

or working conditions after the commencement of

bargaining with a newly certified union, even though

no pre-existing collective bargaining agreement was

in place. The Eleventh Circuit’s decision, unless re-

versed, will paralyze carriers faced with newly cer-

tified unions by locking in all existing pay, rules, and

working conditions during the “virtually endless” and

“purposely long and drawn out’! period of time dur-

ing which carriers subject to the Railway Labor Act

(‘““RLA”’’) must engage in negotiations, mediation, and

a “cooling off’’ period, even if a carrier needs to make

changes to stay in business.

This case reflects a split among the circuits on an

issue of great importance to the railroad and airline

industries, a split that has occurred even though a

prior decision of this Court, Williams v. Jacksonville

Terminal Co., 315 U.S. 386 (1942) (‘Williams’) di-

rectly supports Tampa’s position. This Court should

resolve the conflict in the circuits by granting this

Petition and deciding this important issue.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Eleventh Circuit is reported at 924 F.2d 1005

and is reprinted at pages la to 13a of the Appendix

(‘‘App.”). The order of the United States Court of

Appeals for the Eleventh Circuit denying rehearing

and rehearing in banc is not yet reported, but is

reprinted at App. 27a-28a. The Eleventh Circuit’s or-

der staying issuance of the mandate on Tampa’s mo-

tion is not yet reported, but is reprinted at App. 29a-

30a. The preliminary injunction entered by the United

States District Court for the Southern District of

‘ Burlington No. R. Co. v. Bhd. of Maintenance of Way Em-

ployees, 481 U.S. 429, 444 (1987) (“Burlington Northern’’);

Brotherhood of Ry. Clerks v. Florida East Coast Ry. Co., 384

U.S. 238, 246 (1966).

Florida, from which Tampa appealed, is not reported,

but is reprinted at App. 14a-26a.

JURISDICTION

The opinion and judgment of the Eleventh Circuit

were entered on February 27, 1991. App. la. On May

3, 1991, the Eleventh Circuit denied Tampa’s Petition

for Rehearing and Suggestion of Rehearing in Banc.’

App. 27a-28a. This Court’s jurisdiction is invoked un-

der 28 U.S.C. § 1254(1).

STATUTE INVOLVED

This case involves the RLA, 45 U.S.C. § 151 et seq.

The pertinent provisions of the RLA are reprinted at

App. 55a-62a.

STATEMENT O¢ THE CASE

In 1942, this Court held that a carrier can make

unilateral changes in employee pay, rules, and work-

ing conditions pending negotiations ‘‘where no collec-

tive bargaining agreements are or have been in effect

” Williams, 315 U.S. at 402. The decisions of

the Eleventh Circuit and the District Court expressly

decline to follow that Supreme Court holding and in-

stead conclude that any unilateral change in pay,

rules, or working conditions after negotiations begin

with a newly certified union, but prior to execution

of an initial collective bargaining agreement, is a per

? The Eleventh Circuit stayed issuance of the mandate on May

17, 1991, provided that it receives notice by July 1, 1991, that

Tampa has filed a petition for writ of certiorari. See App. 29a-

30a.

se violation of section 2, First of the RLA, 45 U.S.C.

§ 152, First. App. 5a, 7a, 20a-22a.

In so holding, the courts below are in direct conflict

with decisions of the D.C. Circuit, International Ass’n

of Machinists & Aerospace Workers v. Trans World

Airlines, 839 F.2d 809 (D.C. Cir.), amended on other

grounds, 848 F.2d 232 (D.C. Cir.), cert. denied, 488

U.S. 820 (1988) (““TWA”’); the Ninth Circuit, Regional

Airline Pilots Ass’n v. Wings West Airlines, Inc., 915

F.2d 1399 (9th Cir. 1990) (‘Wings West’’); and the

U. S. District Court for the District of Hawaii, Union

of Flight Attendants v. Air Micronesia, Inc., Civil No.

85-0125, unpublished slip op. (D.Hawaii Aug. 30,

1988), affd, unpublished slip op., Case No. 88-15754

(9th Cir. May 10, 1990) (‘Air Micronesia’’).*

In addition, the Eleventh Circuit’s decision acknowl-

edges that Tampa could have made the changes in

question before negotiations began. See App. 7a-8a.

Given that concession, there is no reason under the

RLA why Tampa could not have made the changes

pending negotiations. The Eleventh Circuit, contrary

to the RLA, substantially impairs carriers’ ability to

fulfill their common carrier obligations and grants veto

power to newly certified unions by allowing such a

union to block any change management seeks to make

pending initial negotiations, no matter how econom-

ically necessary the change may be and without re-

gard to the carrier’s conduct at the negotiating table.

A. Statement of Facts

Tampa is a small cargo airline that does business

in Miami, Florida. See App. 15a. On July 15, 1987,

* Air Micronesia is reprinted at App. 36a-54a.

the International Association of Machinists and Aer-

ospace Workers (‘‘IAM’’) was elected to succeed the

Teamsters Union (‘““Teamsters’’) as the exclusive bar-

gaining representative for Tampa’s fleet service em-

ployees. App. 2a, 16a. During the Teamsters’ tenure,

Tampa and the Teamsters never entered into a col-

lective bargaining agreement. See App. 2a, 34a. A

proposed agreement known as the “tentative agree-

ment”’ existed, but the document was never finalized,

ratified, or signed by either party. Jd. The proposal

did not preclude Tampa from changing employee pay,

rules, and working conditions, and Tampa did so with-

out any complaint from the Teamsters. App. 34a.

Tampa and the IAM began bargaining on October

2, 1987. App. 2a, 16a. During bargaining, Tampa in-

formed the IAM that the “tentative agreement” con-

tained existing rates of pay, rules, and working

conditions. App. 2a. However, Tampa always retained

the right to make unilateral changes, as it had done

in the past. See App. 34a.

As Tampa’s former General Manager stated in an

affidavit:

“The Company has always retained the right

to manage its business and to make changes

which its management deems appropriate in

the conduct of its business. That right has

never been relinquished or restricted by a

collective bargaining agreement.”’

Id. The IAM did not controvert this affidavit.‘ Thus,

the status quo included Tampa’s right to make uni-

lateral changes to meet its needs.

*The Eleventh Circuit discounted the affidavit. See App. 2a

In May 1988, Tampa discharged several employees

represented by the [AM without regard to previously

extant seniority rules proposed in the tentative agree-

ment and informed the IAM that, in keeping with

past practice, there was no grievance procedure re-

garding the discharges. App. 3a, 16a. Tampa also

discharged another employee who served as the IAM’s

shop steward. Jd. The IAM filed this lawsuit there-

after alleging, inter alia, that Tampa breached its

duty under section 2, First of the RLA, 45 U.S.C.

§ 152, First, “‘to exert every reasonable effort to make

and maintain agreements concerning rates of pay,

rules, and working conditions ....” Id.

Tampa and the IAM continued to negotiate in 1988

and 1989.5 App. 3a, 32a-33a. They reached tentative

agreement in whole or in part on 28 sections of an

agreement. App. 33a. Pending negotiations, Tampa

made other unilateral changes, such as curtailing de-

pendent group medical coverage when costs rose, de-

creasing flight crews, increasing flights per day, laying

off employees, and decreasing employee bonuses. See

App. 3a, 16a-17a. The IAM amended its complaint to

assail these changes. App. 3a.

n.2. However, Tampa’s past unilateral changes, which were made

after the “tentative agreement” was prepared and without chal-

lenge from the Teamsters (App. 34a), constituted ‘‘actual objec-

tive working conditions or practices, broadly conceived... .” See

Detroit & Toledo Shore Line R.R. Co. v. United Transp. Union,

396 U.S. 142, 153 (1969) (“Detroit & Toledo’).

5 Although both the Eleventh Circuit and the District Court

claimed that Tampa refused to negotiate further in January 1989

(App. 3a, 16a), Tampa “‘has always been available on a reason-

able basis to meet with and negotiate with the IAM.” App. 33a.

B. Decisions Below

1. The District Court’s Decision

The District Court exercised jurisdiction under 28

U.S.C. §§ 1331, 1337, and the RLA, and issued a

preliminary injunction under section 2, First of the

RLA. App. 17a, 25a-26a. The District Court’s prelim-

inary injunction ordered Tampa not to make further

unilateral changes in pay, rules, or working conditions

and required Tampa to restore certain prior changes

and to engage in expedited arbitrations. App. 25a-

26a.

The District Court acknowledged that Williams was

“apparently binding,’”’ and that the D.C. Circuit held

in TWA that a federal court could not enjoin an air-

line from making unilateral changes where no collec-

tive bargaining agreement was in force between the

parties. App. 21a, 23a n.4. Nevertheless, the District

Court justified its result by finding that Williams was

substantially eroded by Detroit & Toledo. App. 22a.

The District Court described Detroit & Toledo as hold-

ing that the status quo extends to actual, objective

working conditions that need not be embodied in any

existing agreement. Id.

The District Court also relied on NLRB v. Katz,

369 U.S. 736 (1962) (‘‘Katz’’), which involved unilat-

eral changes made by an employer subject to the

National Labor Relations Act (““NLRA’’), 29 U.S.C.

§ 151 et seg. App. 24a. But, the District Court did

not analyze or refer to the differences in the collective

bargaining process under the NLRA and the RLA.

The District Court held that Tampa’s unilateral

changes were per se violations of section 2, First of

the RLA. See App. 20a, 24a. The District Court did

not examine Tampa’s conduct at the negotiating table

or consider whether the changes were actually made

by Tampa to undermine the IAM in any way.

2. The Eleventh Circuit’s Decision

The Eleventh Circuit affirmed the District Court’s

ruling, even though the Eleventh Circuit quoted the

statement in Williams that the RLA’s status quo pro-

visions were ‘‘aimed at preventing changes in working

conditions previously fixed by collective bargaining

agreements.’ App. 5a (quoting Williams, 315 U.S. at

403). The Eleventh Circuit acknowledged that Wiil-

liams “‘might have required the opposite result in this

case ....” App. 7a.

The Eleventh Circuit ruled against Tampa under

section 2, First of the RLA by relying on Detroit &

Toledo, although the Eleventh Circuit acknowledged

that, unlike as in the instant case, there was a col-

lective bargaining agreement in effect between the

parties in Detroit & Toledo. App. 7a n.5. The Elev-

enth Circuit attempted to distinguish TWA by stating

that, although unilateral changes were not enjoined

in TWA, there was no prior collective bargaining

agreement and no prior bargaining between the union

and the carrier in that case. App. 9a. However, TWA

does not limit its holding only to instances in which

there was no prior bargaining and no prior agree-

ment. See 839 F.2d at 814-15. See also App. 23a n.4

(District Court noted that “[t]he TWA court was con-

cerned not with whether negotiations had commenced,

but with whether there was a collective bargaining

agreement in force when the changes were made.”’).

The Eleventh Circuit did not explain why the fact

that prior bargaining alone had occurred in the in-

stant case was sufficient to enjoin Tampa’s unilateral

changes except to cite Detroit & Toledo, a case that

involved prior bargaining and a prior agreement.®

App. 9a, 8a n.5. The Eleventh Circuit also adopted

the holding and analysis of Katz, the NLRA case on

which the District Court relied. App. 10a.

The Eleventh Circuit did state that TWA and Wings

West “contain language which might be interpreted

as supporting Tampa Airlines’ position” that a federal

court cannot enjoin unilateral changes pending ne-

gotiations. App. lla. The Eleventh Circuit “‘respect-

fully disagree{d]’’ with those decisions. Jd.

REASONS FOR GRANTING THE WRIT

A. The Circuits Are Split On The Fundamental Question

Of Federal Labor Law Raised Herein; And, TWA,

Wings West, And Air Micronesia Support Tampa’s

Position

There is a sharp split in the circuits regarding the

circumstances in which a carrier may make unilateral

changes when confronted with a newly certified union,

and the proper scope of Williams after Detroit &

Toledo. This Court should review the Eleventh Cir-

cuit’s decision to resolve this inconsistency.

®In addition, the Eleventh Circuit did not address the fact

that, in Williams, the union asked to meet with the carrier

before the unilateral change was made. 315 U.S. at 402. The

Eleventh Circuit did not explain what it meant by the absence

of prior bargaining. Under the Eleventh Circuit’s decision, it

appears that a carrier may make unilateral changes merely by

doing so prior to actually attending the initial meeting with the

union, conduct that is of a much different magnitude than Tam-

pa’s constant willingness to meet and negotiate with the IAM.

See App. 33a.

The D.C. Circuit held in TWA that a carrier faced

with a newly certified union can make unilateral

changes, despite the provision in section 6 of the RLA

concerning maintenance of the status quo, “in the

absence of pre-existing, in place collective bargaining

agreements.” 839 F.2d at 814. Thus, contrary to the

purported distinction relied upon by the Eleventh Cir-

cuit, the D.C. Circuit’s holding in TWA is that uni-

lateral changes are proper if there is no collective

bargaining agreement in place, as is true in Tampa’s

case. See id.

With respect to section 2, First of the RLA and

the duty imposed therein on carriers and unions to

make and maintain agreements, the Eleventh Cir-

cuit’s interpretation conflicts directly with the D.C.

Circuit’s construction of the same provision. In TWA,

the D.C. Circuit held that a district court does not

have jurisdiction under section 2, First to enjoin uni-

lateral changes when, as in the instant case. all the

RLA’s procedures for negotiations, mediation, and a

“cooling off’’ period have not been exhausted.’ 839

7 The D.C. Circuit relied on limiting language in Chicago and

North Western Ry. Co. v. United Transp. Union, 402 U.S. 570,

582 (1971) (“Chicago and North Western”), providing that a

strike injunction under § 2, First may only be issued if it is ‘‘the

only practical, effective means of enforcing the command of § 2,

First,” and in Burlington Northern, 481 U.S. at 446 and Inter-

national Ass’n of Machinists and Aerospace Workers v. Street,

367 U.S. 740, 773 (1961) that ‘{cjourts should hesitate to fix

upon the injunctive remedy ... unless that remedy alone can

effectively guard the plaintiff's right.” 839 F.2d at 814, 815. By

contrast, the Eleventh Circuit found that the Chicago and North

Western test was readily satisfied before the parties exhausted

the RLA’s procedures. App. 13a. Indeed, the Eleventh Circuit

disagreed with the D.C. Circuit so deeply that the Eleventh

F.2d at 815. But, in the instant case, the Eleventh

Circuit held that an injunction under section 2, First

was proper even though the RLA’s procedures had

not been exhausted. App. lla-13a. Thus, the D.C.

Circuit and the Eleventh Circuit ruled very differently

on these issues, and this Court should resolve the

extreme differences between the two circuits.

The Eleventh Circuit’s decision also conflicts with

the Ninth Circuit’s analysis in Wings West. In that

case, the Ninth Circuit followed TWA’s conclusion, in

reliance on Williams and Chicago and North Western,

that “interjection of the federal courts in the bar-

gaining process is not authorized by section 2, First

.... Wings West, 915 F.2d at 1403. The Ninth Cir-

cuit differed with the D.C. Circuit’s TWA decision

only in finding that, although jurisdiction exists, a

claim is not stated under section 2, First when uni-

lateral changes are made before negotiations had be-

gun. Wings West, 915 F.2d at 1403.

In so holding, the Ninth Circuit rejected any reli-

ance on Katz, the NLRA case that the Eleventh Cir-

cuit embraced. Compare App. 10a with Wings West,

915 F.2d at 1402. The Ninth Circuit noted that, unlike

the NLRA, which provides for an administrative

agency to oversee the bargaining process ‘‘with the

authority to issue orders enforceable by federal courts

to rectify unfair practices,’’ the RLA did not establish

such an agency and “ijt is doubtful that Congress

intended the federal courts to operate as the NLRB

does under the detailed statutory prescriptions of the

Circuit stated that an order enjoining self-help is more, not less,

appropriate before the RLA’s procedures are exhausted. App.

12a.

NLRA.” 915 F.2d at 1402. The Ninth Circuit’s ap-

proach in Wings West is, therefore, very different

from the approach of the Eleventh Circuit, which was

“persuaded” by Katz and made it dispositive of the

issues under the RLA. See App. 10a.

Finally, the Eleventh Circuit’s decision conflicts di-

rectly with the decision of U.S. District Judge Harold

M. Fong in Air Micronesia, a case that presented

facts very similar to the instant case. In Air Micro-

nesia, the carrier made unilateral changes in flight

attendant rates of pay, rules, and working conditions

pending bargaining with a newly certified union. App.

38a-39a, 47a. No prior collective bargaining agree-

ment between the carrier and the union existed, al-

though they had bargained for several years. App.

37a, 47a-48a. Judge Fong held that the unilateral

changes were permissible under Williams because, as

in the instant case, there was no pre-existing collec-

tive bargaining agreement. App. 49a-50a, 5la. By

contrast, the Eleventh Circuit’s decision states that

unilateral changes are permissible, despite Williams,

only where there is no pre-existing agreement and

no prior bargaining. App. 7a-8a.

This Court should resolve the stark conflict between

the Eleventh Circuit’s decision and TWA, Wings West,

and Air Micronesia. The national transportation sys-

tem needs a single interpretation of the RLA applied

uniformly across the country, irrespective of the cir-

cuit in which a lawsuit happens to be brought.

B. The Eleventh Circuit Improperly Expanded Detroit

& Toledo And Erroneously Adopted Katz’s NLRA

Holding To Decide This RLA Case

1. The Eleventh Circuit Stretched Detroit & Toledo Be-

yond The RLA’s Outer Limits

The Eleventh Circuit’s decision acknowledged that

Detroit & Toledo did not resolve a claim brought un-

der the RLA provision at issue here, section 2, First,

45 U.S.C. § 152, First. App. 7a n.6. In addition, the

Eleventh Circuit conceded that Detroit & Toledo in-

volved a pre-existing collective bargaining agreement,

while there was no such executed and ratified agree-

ment in the instant case. App. 7a n.5, 2a. Detroit &

Toledo, also, did not involve a carrier bargaining with

a newly certified union, as Tampa did in the instant

case. See 396 U.S. at 143. Nevertheless, the Eleventh

Circuit expanded Detroit & Toledo to cover the in-

stant case. See App. 7a-8a.

This expansion by the Eleventh Circuit constitutes

a fundamental error because this Court stated in

* By contrast, the petitioners in Williams relied on, inter alia,

section 2, First, and this Court declined to apply that provision

to bar unilateral changes before a collective bargaining agree-

ment is in effect. 315 U.S. at 399, 402-03. Although Detroit &

Toledo stated that section 2, First together with the RLA’s

status quo provisions, 45 U.S.C. §§ 156, 155 Fifth, 160, form

“an integrated, harmonious scheme ....”’ 396 U.S. at 152, the

Eleventh Circuit wrote that 45 U.S.C. § 156, unlike section 2,

First as construed by the same court, “may” bar unilateral

changes only where there is a formal collective bargaining agree-

ment in place. App. 7a n.5. Thus, the Eleventh Circuit reached

its desired result by going well beyond Detroit & Toledo to hold

that section 2, First alone bars unilateral changes in the absence

of a written agreement, even though section 2, First is silent

with respect to unilateral changes. See id.

Pittsburgh & Lake Erie R.R. Co. v. Railway Labor

Executives Ass’n, 491 U.S. 490 (1989), that Detroit

& Toledo ‘‘extended the relevant language of § 156

to its outer limits’’ and declined to extend the case

further. 491 U.S. at 506. The Court limited Detroit

& Toledo to the narrow holding that:

‘(T]he status quo provision [in the RLA] re-

quire[s] adherence not only to working con-

ditions contained in express or implied

agreements between the railroad and its

union but also to conditions ‘objectively in

existence’ when the union’s notice [for re-

negotiation] was served ....”

Id.

The Eleventh Circuit held that Detroit & Toledo

covers instances in which (1) there was never a col-

lective bargaining agreement in place; and (2) the

union that sought to lock in existing working condi-

tions pending negotiations was not certified to rep-

resent the employees when the conditions were first

put into effect. This Court should review the Eleventh

Circuit’s decision in light of its unwarranted expan-

sion of Detroit & Toledo.

2. The Eleventh Circuit Erred By Importing Katz’s Hold-

ing Under The NLRA To Govern The RLA Because The

Two Statutes Establish Very Different Regimes For Col-

lective Bargaining

The Eleventh Circuit’s decision cited this Court’s

statements that NLRA principles “cannot be imported

wholesale into the railway labor arena ...”’ and that

{elven rough analogies [between the NLRA and the

RLA] must be drawn circumspectively ....’’ App. 9a-

nen a

10a (quoting Brotherhood of R.R. Trainmen v. Jack-

sonville Terminal Co., 394 U.S. 369, 383 (1969)). See

also Trans World Airlines v. Independent Fed’n of

Flight Attendants, 489 U.S. 426, 439 (1989). Yet, the

Eleventh Circuit’s decision imported Katz’s holding

under the NLRA wholesale into the RLA. App. 10a.

This is a fundamental error warranting this Court’s

review.

The Eleventh Circuit’s decision did not recognize

that the RLA and the NLRA establish very different

collective bargaining processes. The RLA permits

either party, once bargaining has begun, to invoke

the mediation services of the National Mediation

Board (““NMB”’), which may also proffer its services

sua sponte. 45 U.S.C. §§ 155, First, 156. Once the

NMB’s services are invoked, the parties must bargain

under NMB mediation until the NMB decides in its

discretion that mediation was unsuccessful and prof-

fers binding arbitration to the parties. 45 U.S.C.

§ 155, First. See also 45 U.S.C. § 157. If either party

declines the NMB’s proffer of arbitration, a 30-day

“cooling off’’ period is triggered. 45 U.S.C. § 155,

First.°

*If arbitration is rejected, and the dispute threatens to in-

terrupt interstate commerce substantially, the NMB can notify

the President, who may establish an emergency board to inves-

tigate and report on the dispute. 45 U.S.C. § 160. By contrast,

the Labor Management Relations Act permits the President to

obtain an injunction delaying a strike or lockout in an industry

not subject to the RLA for just 80 days while a board of inquiry

is reconvened, only upon finding that the national health or

safety will be imperiled by a threatened or actual strike or

lockout affecting an entire industry or substantial part thereof

engaged in trade, commerce, transportation, transmission, or

communications, among several states or with foreign nations,

As a result, the NMB can insist that the parties

continue meeting indefinitely, without any meaningful

review by a federal court. See International Ass’n of

Machinists and Aerospace Workers v. NMB, 930 F.2d

45, 48-49 (D.C. Cir. 1991) (affirming refusal to order

NMB to proffer arbitration after ten months of ne-

gotiations and 16 months of mediation); Local 808,

Building Maintenance, Service & R.R. Workers v.

NMB, 888 F.2d 1428, 1433-35, 38 (D.C. Cir. 1989)

(‘Local 808’’) (reversing injunction ordering NMB to

_ proffer arbitration after ten months of negotiations

and approximately two years of mediation); Interna-

tional Ass’n of Machinists & Aerospace Workers v.

NMB, 425 F.2d 527, 538-43 (D.C. Cir. 1970) (same

result after less than one month of negotiations and

four months of mediation); Lan Chile Airlines v.

NMB, 115 L.R.R.M. 3655, 3656 (S.D. Fla. 1984) (de-

clining to order NMB to proffer arbitration after 16

months of mediation).'° Collective bargaining under

the RLA can be ‘an almost interminable process.”

Detroit & Toledo, 396 U.S. at 149.

The NLRA does not establish any such lengthy bar-

gaining process overseen and managed by a federal

or the production of goods for commerce. 29 U.S.C. §§ 176-180.

See also R. Gorman, Labor Law—Basic Text Ch. 18, § 2 at 367-

69 (1976).

10 As the D.C. Circuit put it,

“In no case cited by the parties to this case, and in

none we can find, has a court ever ordered the Na-

tional Mediation Board to terminate mediation and

proffer arbitration .... Absent a showing of patent

official bad faith, a court has no authority to review

the [NMB’s] decision to keep a dispute in mediation.”

Local 808, 888 F.2d at 1433, 1434.

agency with the ongoing authority of the NMB. See

29 U.S.C. § 151 et seg. Even after Katz, an employer

subject to the NLRA does not have to look forward

to a “virtually endless” process before it may make

unilateral changes. Cf. Burlington Northeri, 481 U.S.

at 444 (cailing RLA process “virtually endless’’). Un-

der the NLRA, an employer may make unilateral

changes equivalent to its last proposal once bargain-

ing reaches what it considers to be ‘‘impasse,”’ subject

to subsequent review by the National Labor Relations

Board (‘‘NLRB’’) only if one party brings an unfair

labor practice charge." See, e.g., 29 U.S.C. § 158(a)5);

‘Indeed, in the Fifth Circuit, an employer subject to the

NLRA may make unilateral changes even before impasse if the

union was given prior notice of the changes and a reasonable

opportunity to respond. E.g., Nabors Trailers, Inc. v. NLRB,

910 F.2d 268, 273 (5th Cir. 1990), cert. granted, No. 90-165, 59

U.S.L.W. 3735 (April 30, 1991); NLRB v. Citizens Hotel Co.,

326 F.2d 501, 505 (5th Cir. 1964). Moreover, some contractual

terms, such as union security and dues check-off clauses, are

not covered at all by Katz and may be altered upon contract

expiration. See Litten Financial Printing Division v. NLRB, No.

90-285, 59 U.S.L.W. 4641, 4644 (June 11, 1991). Generally, an

employer subject to the NLRA in an industry affecting com-

merce need only notify the union of the proposed modification

or termination of an existing contract 60 days prior tu its ex-

piration, and must also notify the Federal Mediation and Con-

ciliation Service (“‘“FMCS”’) and any applicable state agency of

the existence of a labor dispute within 30 days after notifying

the union. 29 U.S.C. § 158(d). But, even with respect to terms

covered by Katz, an employer may generally make unilateral

changes under 29 U.S.C. § 158(d) once impasse is reached, so

long as the collective bargaining agreement expired or 60 days

passed after notice was given to the union, whichever is later

(even if the FMCS or state agency was or is involved in seeking

to mediate an agreement). 29 U.S.C. § 158(d\4). The FMCS,

completely unlike the NMB, may only use conciliation ior “a

Katz, 369 U.S. at 741-43; Bi-Rite Foods, Inc., 147

N.L.R.B. 59, 64-65 (1964). See also R. Gorman, Labor

Law—Basic Text Ch. 20, §12, at 443-444 (1976).

The Eleventh Circuit’s decision ignores these very

substantial differences in the collective bargaining

process under the RLA vis-a-vis the NLRA and errs

fundamentally in simply adopting Katz’s NLRA hold-

ing to decide this RLA case. This Court should grant

review to consider whether the more lengthy RLA

bargaining process carried out under the direct su-

pervision of the NMB warrants permitting carriers

subject to the RLA to make changes during bargain-

ing with a newly certified union, particularly in the

absence of any finding of actual bad faith as here.

C. The Eleventh Circuit’s Distinction Between Permis-

sible Changes Made Before Bargaining Begins, And

Impermissible Changes Made Thereafter, But Before

A Contract Is Reached, Conflicts With The RLA

The Eleventh Circuit’s decision will make it much

more difficult for carriers and newly certified unions

to reach agreements because the decision gives newly

certified unions veto power over changes that the

carriers need to make while bargaining proceeds. Un-

der the Eleventh Circuit’s decision, a newly certified

union can keep negotiating “‘almost interminabj[ly]’’

and thereby prevent the carrier from making changes,

even if the changes are necessary for the carrier to

remain competitive. See Detroit & Toledo, 396 U.S.

at 149. Because a central goa! of the RLA is to en-

courage carriers and unions to reach agreements (see

reasonable time,” and the FMCS does not have any legal au-

thority to decide when the parties may alter the status quo. See

29 U.S.C. § 173.

45 U.S.C. §§ 151a(4), 152, First), and because section

2, First does not address unilateral changes, much

less create the distinction adopted by the Eleventh

Circuit, this Court should review the Eleventh Cir-

cuit’s decision.

A newly certified union whose employees have fa-

vorable rates of pay, rules, or working conditions will

have no incentive in light of the Eleventh Circuit’s

decision to reach agreement at the bargaining table.

Until the RLA’s lengthy procedures are exhausted, a

carrier would have to keep favorable practices in

place. On the other hand, the Eleventh Circuit’s de-

cision gives a carrier no incentive to begin bargaining

with a newly certified union. Until bargaining begins,

the carrier can make unilateral changes. The Eleventh

Circuit’s decision, therefore, makes it much less likely

that a carrier and a newly certified union will

promptly reach agreement at the table, a result that

is at odds with the RLA. See App. 4a (“The purposes

of the [RLA] are facilitated by an elaborate statutory

scheme designed to encourage negotiation and me-

diation rather than conflict resulting in the interrup-

tion of interstate commerce.’’). The Eleventh Circuit’s

decision does not encourage negotiation and media-

tion. Rather, the Eleventh Circuit, without any as-

sessment of the parties’ conduct in negotiations and

before all the RLA’s processes were allowed to run,

virtually guarantees that newly certified unions will

not agree to concessions until the RLA’s procedures

have been exhausted.

Moreover, in construing a federal statutory provi-

sion such as section 2, First, to determine what Con-

gress intended, this Court deems clear statutory

language conclusive and turns to legislative history if

the statutory language is unclear. See, e.g., Toibb v.

Radloff, No. 90-368, 59 U.S.L.W. 4633, 4634 (June

11, 1991); Blum v. Stenson, 465 U.S. 886, 896 (1984).

Section 2, First of the RLA is clear in that it says

nothing about unilateral changes at all (much less

changes made pending bargaining with a newly cer-

tified union). In addition, the Eleventh Circuit’s de-

cision does not cite any legislative history evidencing

any intention by Congress, in enacting section 2, First,

to bar such changes. In light of the Eleventh Circuit’s

departure from the statute’s language, the absence of

any analysis of legislative intent, and this Court’s

clear holding in Williams, this Court should review

the Eleventh Circuit’s decision.

CONCLUSION

The Eleventh Circuit’s decision will significantly im-

pair labor relations between newly certified unions,

airlines, and railroads. The Eleventh Circuit’s decision

conflicts with decisions in other circuits, misreads

prior decisions of this Court, and adopts a rule of

law that is not present in the language Congress used

in section 2, First of the RLA.

For all of the foregoing reasons, Transportes Aereos

Mercantiles Pan Americanos, S.A., a/k/a Tampa Air-

lines respectfully requests that this Court grant this

petition.

Respectfully submitted,

STUART A. GOLDSTEIN JOSEPH L. MANSON, III*

LAW OFFICES OF DEAN R. BRENNER

STUART A. GOLDSTEIN VERNER, LIIPFERT, BERNHARD,

444 Brickell Avenue MCPHERSON AND HAND, CHARTERED

Suite 300 901 15th Street, N.W.

Miami, Florida 33131 Suite 700

(305) 358-5800 Washington, D.C. 20005

(202) 371-6000

Attorneys for Petitioner

Dated: June 28, 1991

*Counsel of Record

APPENDIX

APPENDIX A

INTERNATIONAL ASSOCIATION OF MACHINISTS AND

AEROSPACE WORKERS; District 100, International

Association of Machinists and Aerospace Workers,

Plaintiffs-Appellees,

TRANSPORTES AEREOS MERCANTILES PAN

AMERICANOS, S.A., a/k/a Tampa Airlines,

Defendant-Appellant.

No. 89-5912

United States Court of Appeals,

Eleventh Circuit

February 27, 1991

Appeal from the United States District Court

for the Southern District of Florida

Before HATCHETT and ANDERSON, Circuit Judges, and

ESCHBACH", Senior Circuit Judge.

ANDERSON, Circuit Judge:

Appellant Transportes Aereos Mercantiles Pan Ameri-

canos, S.A., a/k/a Tampa Airlines (‘Tampa Airlines’’)

appeals from the district court’s order granting a prelim-

inary injunction in favor of appellees International Asso-

ciation of Machinists and Aerospace Workers (‘‘LAM’’) and

* Honorable Jesse E. Eschbach, Senior U.S. Circuit Judge for the

Seventh Circuit, sitting by designation.

District 100, IAM. Relying on §2 First of the Railway

Labor Act (‘““RLA’”’), 45 U.S.C. § 152 First, the district

court enjoined Tampa Airlines from making unilateral

changes in working conditions during negotiations directed

toward reaching a collective bargaining agreement. The

district court also ordered that Tampa Airlines restore the

working conditions to the status quo before certain .ni-

lateral changes were made. Appellant argues that the dis-

trict court misapplied the Railway Labor Act and its

attendant case law and that the injunction was an inap-

propriate remedy.

The district court found the following undisputed facts

after conducting a hearing. On July 15, 1987, appellee IAM

was elected to succeed the Teamsters Union as the exclu-

sive bargaining representative for the fleet service em-

ployees of appellant Tampa Airlines.' During the

Teamsters’ tenure as the employees’ representative, col-

lective bargaining had produced a tentative agreement re-

garding rates of pay, rules, and working conditions.

Although that agreement was never finalized or ratified,

Tampa Airlines informed IAM, at the October 2, 1987

commencement of bargaining between IAM and Tampa

Airlines, that such agreement contained the existing rates

of pay, rules, and working conditions, 1.e., the status quo.’

‘ Tampa Airlines is a common carrier by air as defined by the Railway

Labor Act, 45 U.S.C. §§ 151, 181.

* Tampa Airlines defines the status quo as “that rates of pay, rules

and working conditions were changed by management at its discretion

to meet Tampa’s needs.” Brief of Appellant at 4 and 11 (relying on

Affidavit of Rodrigo Arboleda, R1-27-5). A reading of the proffered

affidavit reveals that the affiant stated only that management had not

bound itself not to make unilateral changes by a collective bargaining

agreement and that management had made certain unspecified changes

after reaching the tentative agreement with the Teamsters. Tampa

Airlines does not contend, however, that the district court’s finding

In May, 1988, Tampa Airlines fired several union em-

ployees without regard to previously extant seniority rules

and informed the union that there was no grievance pro-

cedure in existence to challenge the firings. District Court

Order, R1-32-3. Also in May, 1988, management fired the

shop steward, allegedly on the grounds that, although he

was a good employee, his position with the union would

not be tolerated and that management would not respect

the union or its members’ rights.

IAM responded by filing the instant action alleging bad

faith on the part of Tampa Airlines in connection with the

ongoing collective bargaining negotiations. Despite the on-

set of litigation, collective bargaining continued until Jan-

uary, 1989, when Tampa Airlines refused to negotiate

further with IAM. Tampa Airlines subsequently made ad-

ditional unilateral changes, including stopping without no-

tification contributions to the employees’ dependent group

medical insurance coverage, decreasing certain employee

bonuses, decreasing flight crews, increasing flights per day,

and laying off more employees. [AM amended its complaint

to encompass these additional changes.

Il.

In 1926, Congress enacted the Railway Labor Act, 45

U.S.C. §§ 151-188, for the following stated purposes:

(1) to avoid any interruption to commerce or to

the operation of any carrier engaged therein;

(2) to forbid any limitation upon freedom of as-

that management had informed IAM that the unratified agreement

represented the existing conditions was in error. Therefore, we accept

the district court’s definition of the status quo.

In addition, as the district court noted, ‘[t]here were two provisions

of the unratified agreement that the union admits were not part of

the rates of pay, rules and working conditions ...: the union security

clause and the dues checkoff clause.” R1-32-3 at n.1. Those provisions

are not at issue here.

sociation among employees or any denial, as a

condition of employment or otherwise, of the

right of employees to join a labor organization;

(3) to provide for the complete independence of

carriers and of employees in the matter of self-

organization to carry out the purposes of this

chapter; (4) to provide for the prompt and orderly

settlement of all disputes concerning rates of pay,

rules, or working conditions; (5) to provide for

the prompt and orderly settlement of all disputes

growing out of grievances or out of the inter-

pretation or application of agreements covering

rates of pay, rules, or working conditions.

45 U.S.C. § 15la.

The purposes of the act are facilitated by an elaborate

statutory scheme designed to encourage negotiation and

mediation rather than conflict resulting in the interruption

of interstate commerce. Essential to this scheme is the

duty to bargain in good faith codified in § 2 First of the

Act, 45 U.S.C. § 152 First, providing that:

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

agents, and employees to exert every reasonable

effort to make and maintain agreements con-

cerning rates of pay, rules, and working condi-

tions, and to settle all disputes, whether arising

out of the application of such agreements or oth-

erwise, in order to avoid any interruption to com-

merce or to the operation of any carrier growing

out of any dispute between the carrier and the

employees thereof.

Section 2 First is not merely hortatory; it imposes judi-

cially enforceable legal obligations. See Chicago & North

Western Ry. Co. v. United Transport Union, 402 U.S. 570,

91 S. Ct. 1731, 29 L. Ed. 2d 187 (1971). Furthermore,

the Supreme Court has held that § 2 First, together with

other provisions of the Railway Labor Act, ‘form an in-

tegrated, harmonious scheme for preserving the status quo

from the beginning of the major dispute* through the final

30-day ‘cooling-off’ period.’’ Detroit & Toledo Shore Line

Ry. Co. v. United Transportation Union, 396 U.S. 142,

152, 90 S. Ct. 294, 300, 24 L. Ed. 2d 325 (1969).

The question presented here is whether the obligation

to bargain in good faith of § 2 First precludes management

from making unilateral changes in working conditions after

the onset of negotiations directed toward adoption of an

initial collective bargaining agreement. Tampa Airlines as-

serts that it does not, at least in the absence of a pre-

existing collective bargaining agreement. In light of the

history of prior collective bargaining between the parties,

and notwithstanding the fact that there was no prior col-

lective bargaining agreement in effect, we conclude that

the district court properly restored the status quo and

enjoined Tampa Airlines from making future unilateral

changes.

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

403, 62 S. Ct. 659, 669, 86 L. Ed. 914 (1942), the Supreme

Court declared that the Railway Labor Act’s status quo

provisions were ‘‘aimed at preventing changes in working

conditions previously fixed by collective bargaining agree-

ments.” In other words, “pending ... negotiations, where

no collective bargaining agreements are or have been in

effect, the carrier” is free to make unilateral changes. Jd.

at 402, 62 S. Ct. at 669. However, the Supreme Court

severely circumscribed the Williams holding in Detroit &

Toledo Shore Line Ry. Co. v. United Transportation Union,

396 U.S. 142, 90 S. Ct. 294, 24 L. Ed. 2d 325 (1969).

*The district court properly classified the instant case as a major

dispute. R1-32-5 (citing Elgin, J. & E.R. Co. v. Burley, 325 U.S. 711,

65 S. Ct. 1282, 89 L. Ed. 1886 (1945)). This determination is not. at.

issue on appeal. For a good discussion of the distinction between major

and minor disputes under the Railway Labor Act, see generally Sheet

Metal Workers’ Intern. Ass'n. v. Burlington No. Ry. Co., 893 F.2d 199,

202-04 (8th Cir. 1990).

In Detroit & Toledo, the Court held that the status quo

provisions obligate both union and management to main-

tain not only the working conditions contained in an ex-

isting collective bargaining agreement, but also “those

actual, objective working conditions and practices, broadly

conceived, which were in effect prior to the time the pend-

ing dispute arose and which are involved in or related to

that dispute.” Jd. at 153, 90 S. Ct. at 301. The Court

added: “(Clearly these conditions need aot be covered in

an existing agreement.” Jd. The rationale for this holding

is that if management is permitted to resort to self-help

before exhaustion of the Act’s negotiation and mediation

procedures, ‘“‘the union cannot be expected to hold back

its own economic weapons, including the strike.” Id. at

155, 90 S. Ct. at 302. In addition, “{uJnilateral changes

made while the employees’ representative is seeking to

bargain ...interfere with the normal course of negotia-

tions by weakening the union’s bargaining position.”’ Cox,

The Duty to Bargain in Good Faith, 71 Harv. L. Rev.

1401, 1423 (1958).

In Detroit & Toledo, the union invoked § 6 of the Act,

45 U.S.C. § 156,‘ which, along with §5 First and § 10, 45

‘45 U.S.C. § 156 states:

Carriers and representatives of the employees shall give at

least thirty days’ written notice of an intendeci change in

agreements affecting rates of pay, rules, or working con-

ditions, and the time and place for the beginning of con-

ference between the representatives of the parties interested

in such intended changes shall be agreed upon within ten

days after the receipt of said notice, and said time shal! be

within the thirty days provided in the notice. In every case

where such notice of intended change has been given, or

conferences are being held with reference thereto, or the

services of the Mediation Board have been requested by

either party, or said Board has proffered its services, rates

of pay, rules, or working conditions shall not be altered by

the carrier until] the controversy has been finally acted upon

U.S.C. §§ 155 First, 160, comprises the status quo portion

of the Act. Detroit & Toledo at 150-51, 90 S. Ct. 299-300.

In this appeal, however, none of these three provisions

has been invoked.® This raises a question specifically left

open by Detroit & Toledo: whether §2 First’s duty to

bargain in good faith, standing alone, precludes unilateral

changes after negotiations have commenced.* We conclude

that it does.

Although the Williams holding by itself might have re-

quired the opposite result in this case, Detroit & Toledo

has limited Williams’ allowance of unilateral changes to

the narrow situation where there is “absolutely no prior

history of any collective bargaining or agreement between

the parties on any matter.” Detroit & Toledo, 396 U:S.

at 158, 90 S. Ct. at 303 (emphasis added). In the instant

case, collective bargaining between the Teamsters and

as required by section 155 of this title, by the Mediation

Board, unless a period of ten days has elapsed after ter-

mination of conferences without request for or proffer of

the services of the Mediation Board.

‘IAM requested relief under both § 2 First and §6 in their original

complaint, but has relied on § 2 First alone on this appeal. It is ques-

tionable whether §6 could be properly invoked here because §6 may

only apply where there is an intended change in an existing, formal

collective bargaining agreement. Detroit & Toledo involved a situation

where there was such an agreement and the Court held that once § 6

is invoked, the status quo that must be maintained includes not only

what is in the existing agreement, but also the actual working condi-

tions in place, even if those conditions fall outside of the existing

agreement. We need not decide whether the tentative agreement

reached by management and the Teamsters in the instant case is an

agreement within the meaning of §6 because, as discussed below in

text, we conclude that § 2 First precludes the unilateral changes made

here despite the lack of a formal agreement in light of the history of

prior collective bargaining between the parties.

* In Detroit & Toledo, the union argued that the railroad violated the

duty to bargain in good faith. The Court declined to reach that ar-

gument because it resolved the case on the basis of §6. Detroit &

Toledo, 396 U.S. at 155 n.23, 90 S. Ct. at 302 n.23.

wth

Tampa Airlines as well as bargaining involving IAM had

already occurred at the time that Tampa Airlines made

the unilateral changes at issue. Furthermore, at the time

that bargaining commenced, Tampa Airlines informed IAM

that the prior, unratified agreement represented the status

quo. Because there was a prior history of collective bar-

gaining here, this case does not fall within Williams small

window of remaining vitality.’

Having concluded that the instant case is not controlled

by Williams, as the holding of that case was narrowed in

Detroit & Toledo, we next conclude that the rationale of

Detroit & Toledo, combined with Chicago & North West-

ern’s holding that § 2 First provides for enforceable legal

duties, precludes the unilateral changes made here. In De-

troit & Toledo, there was a pre-existing collective bar-

gaining agreement to serve as a stepping stone for an

injunction defining the status quo as broader than that

agreement, i.¢., to encompass the actual conditions in place

not covered by the agreement. Although here there was

no prior formal collective bargaining agreement, the in-

stant case implicates the identical policies behind the De-

troit & Toledo holding. If management is permitted to

make unilateral changes in working conditions during col-

lective bargaining, the union’s position will be undermined,

interruptions to interstate commerce are likely to occur,

and the purposes of the Act will be frustrated.

Tampa Airlines relies on International Ass’n. of Ma-

chinists & Aerospace Workers (IAM) v. Trans World Air-

lines, 839 F.2d 809 (D.C. Cir.), amended on other grounds,

848 F.2d 232 (D.C. Cir.), cert. denied, 488 U.S. 820, 109

S. Ct. 62, 102 L. Ed. 2d 40 (1988) for the proposition that

there must be a prior collective bargaining agreement be-

7In fact, the Detroit & Toledo case questioned whether Williams has

any remaining vitality. Detroit & Toledo at 158, 90 S. Ct. at 303.

Because there was prior collective bargaining in this case, we need not

address the continuing validity of Williams.

a oe ee) Oe om, @

fore management can be enjoined from unilaterally chang-

ing working conditions. In that case, the court held only

that ‘Williams ... [is] binding in a case like this one be-

fore us where there has been ‘absolutely no prior history

of any collective bargaining or agreement between the

parties on any matter.’ ”’ IAM v. Trans World Airiines at

814 (quoting Detroit & Toledo, 396 U.S. at 158, 90 S. Ct.

at 303). We note that the D.C. Circuit apparently believed

that the facts before it fell squarely within the remaining

Williams window of vitality, i.e., no prior collective bar-

gaining and no prior agreement. Because there was prior

collective bargaining in this case, the D.C. Circuit case is

distinguishable. We reject Tampa Airlines’ argument that

there must be a prior collective bargaining agreement be-

fore management can be enjoined from unilaterally chang-

ing working conditions. Williams was expressly limited by

Detroit & Toledo to a situation where there is not only

no pre-existing agreement, but also no history of collective

bargaining.®

Our interpretation of the Railway Labor Act’s duty to

bargain in good faith is also supported by an analogy to

cases interpreting the National Labor Relations - Act

(NLRA), 29 U.S.C. § 141, et seg. and its duty to bargain

in good faith. See 29 U.S.C. § 158. Although we realize

that the NLRA “cannot be imported wholesale into the

railway labor arena...’’ and that “[e]ven rough analogies

*The Ninth Circuit, apparently reading the D.C. Circuit’s JAM v.

Trans World Airlines case as does Tampa Airlines, said: ‘We . . . differ

with the D.C. Circuit in that ...{oJur view is that jurisdiction exists

to enforce section 2, First through Fourth, but that the prerequisites

for stating a claim under authority of Chicago & N.W. Ry. do not exist

under the facts of this case where there has been no negotiation process

instituted at ail.’ The Regional Airline Pilots Ass’n. v. Wings West

Airlines, Inc., 915 F.2d 1399, 1403 (9th Cir. 1990). Thus, the Ninth

Circuit appears to be in accord with our holding that unilateral changes

in working conditions can be enjoined where there has been prior bar-

gaining.

10a

must be drawn circumspectively ... ,”” Brotherhood of Rail-

road Trainmen v. Jacksonville Terminal Co., 394 U.S. 369,

383, 89 S. Ct. 1109, 1118, 22 L. Ed. 2d 344 (1969), an

analogy is appropriate in this instance because both the

RLA and the NLRA require the same ‘good faith’ bar-

gaining. Norfolk & Portsmouth Belt Line Ry. Co. v. Broth-

erhood of Railway Trainmen, 248 F.2d 34, 45 n.6 (4th Cir.

1957), cert. denied, 355 U.S. 914, 78 S. Ct. 343, 2 L. Ed.

2d 274 (1958) (citing Brotherhood of Railway Trainmen v.

Toledo, Peoria & Western Railroad, 321 U.S. 50, 64 S.

Ct. 413, 88 L. Ed. 584 (1944)). As the Supreme Court

noted in Chicago & North Western, 402 U.S. at 574-75,

91 S. Ct. at 1734, 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 conditions

must be maintained during negotiations because “(t]he bar-

gaining status of a union can be destroyed by going

through the motions of negotiating almost as easily as by

bluntly withholding recognition’ of the union as the bar-

gaining representative.

Drawing on this analogy with the NLRA, we are per-

suaded by the Supreme Court’s reasoning in N.L.R.B. v.

Katz, 369 U.S. 736, 82 S. Ct. 1107, 8 L. Ed. 2d 230 (1962),

a case interpreting the NLRA’s to bargain in good faith.

In Katz, the Court held, in a situation where there was

no prior collective bargaining agreement between man-

agement and the union, that “an employer’s unilateral

change in conditions of employment under negotiation is

[as much a violation of the duty to bargain in good faith]

as ...a flat refusal [to negotiate].” Jd. at 748, 82 S. Ct.

at 1111. Similarly, we hold that Tampa Airlines violated

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

erally changed existing working conditions after collective

bargaining negotiations with IAM had begun.

lla

Il,

Tampa Airlines argues that, even if it has violated RLA

§ 2 First’s duty to bargain in good faith, the district court

improperly granted injunctive relief. Tampa Airlines con-

tends that “injunctive relief under RLA §2 First [§ 152

First] is available only if all the procedures for negotia-

tions, mediation and ‘cooling off’ period have been unsuc-

cessfully utilized ....” Brief of Appellant at 24 (emphasis

in original) (quoting International Ass’n. of Machinists &

Aerospace Workers (IAM) v. Trans World Airlines, 839

F.2d 809 (D.C. Cir. 1988)).

Although it is true that “{[cjourts should hesitate to fix

upon the injunctive remedy... unless that remedy alone

can effectively guard the plaintiff’s right,’”” JAM v. Trans

World Airlines, 839 F.2d at 815 (quoting Burlington

Northern R.R. v. BMWE, 481 U.S. 429, 446, 107 S. Ct.

1841, 1851, 95 L. Ed. 2d 381 (1987) (quoting IAM v. Street,

367 U.S. 740, 773, 81 S. Ct. 1784, 1802, 6 L. Ed. 2d 1141

(1961)), we are not persuaded by the argument that an

injunction should not issue unless the very procedures that

are being undermined by the unilateral changes are ex-

hausted. Without enjoining future unilateral changes and

restoring the prior conditions, the very procedures that

Tampa Airlines suggests must be first pursued will be

undermined.

Both IAM v. Trans World Airlines, 839 F.2d at 815,

and the Ninth Circuit’s opinion in Regional Airline Pilots

Ass'n. v. Wings West Airlines, Inc., 915 F.2d 1399 (9th

Cir. 1990) contain language which might be interpreted as

supporting Tampa Airlines’ position that an injunction can-

not issue until all RLA procedures have been exhausted.

To the extent that those cases so hold, we respectfully

disagree. Such a position would be a misapplication of

Chicago & North Western. Nothing in that opinion suggests

a rule that an injunction should issue only after all RLA

procedures are exhausted. Rather, Chicago & North West-

12a

ern merely held that a strike injunction should issue only

where it is the only “practical, effective means of enforcing

the duty to exert every reasonable effort to make and

maintain agreements ....’ Chicago & North Western, 402

U.S. at 583, 91 S. Ct. at 1738.

In fact, the rule suggested by Tampa Airlines is incon-

sistent with important policies underlying the RLA. It is

well established that the RLA is designed to preserve the

status quo and to discourage resort to self-help during the

time that the RLA procedures are being pursued; there-

after, resort to self-help is generally permissible. Thus,

contrary to the rule urged by Tampa Airlines, an order

enjoining self-help is more appropriate, not less appropri-

ate, before all of the RLA procedures are exhausted.’

The test established in Chicago & North Western, 91 S.

Ct. at 1738, for determining whether to enjoin the uni-

lateral changes is whether an injunction is the only prac-

tical, effective means of enforcing the duty to bargain in

* If, as Tampa Airlines and the D.C. Circuit suggest, Chicago & North

Western provided support for the proposition that an injunction is ap-

propriate only after all RLA procedures have been exhausted, then

Chicago & North Western would be inconsistent with the above-men-

tioned policies underlying the RLA. However, a careful reading of

Chicago & North Western reveals that there is no such inconsistency.

The Supreme Court did note early in their opinion that “(flor present

purposes it is sufficient to observe that the parties have exhausted the

formal procedures of the Railway Labor Act....” Chicago & North

Western, 91 S. Ct. at 1733. However, the court later remarked, after

holding that §2 First imposes a legal obligation on the parties, that

the union went “through the motions [of the RLA procedures] with ‘a

desire not to reach an agreement’ ”’ Jd. at 1736 (citation omitted). Thus,

in Chicago & North Western, the RLA procedures had not been ex-

hausted, i.e., the RLA procedures had not been performed in conformity

with §2 First’s duty to bargain in good faith. Therefore, Chicago &

North Western provides no support for the rule proposed by Tampa

Airlines, not only for the reasons stated in the text, but also because

that case did not present a situation where all of the RLA procedures,

including § 2 First, had been exhausted.

13a

good faith expressed in §2 First. In Chicago & North

Western, the unilateral action sought to be enjoined was

a strike, thus triggering the prohibition against strike in-

junctions found in the Norris-Laguardia Act, 29 U.S.C.

§ 104(a). We need not decide whether a less restrictive

test should apply in the instant case, which does not in-

volve a strike injunction, because the Chicago & North

Western test is readily satisfied here. In the instant case,

we have held that Tampa Airlines has not exerted rea-

sonable efforts to bargain in good faith. Since the unilat-

eral changes made by Tampa Airlines will inevitably

undermine I[AM’s bargaining position, we cannot conclude

that other remedies, short of an injunction, would be ef-

fective. During the course of bargaining and after refusing

to bargain further with IAM, Tampa Airlines fired nu-

merous employees and unilaterally made changes in work-

ing conditions, including changes involving several

significant fringe benefit programs. Such action by Tampa

Airlines could only serve to undermine the union members’

confidence in IAM, their bargaining representative, and to

undermine the ability of IAM to bargain on a fair and

equal basis with management. Under these circumstances,

it was entirely appropriate for the district court to fashion

an injunction so that fair negotiations could continue under

the RLA procedures. Any collective bargaining agreement

that might result from further negotiations in the absence

of an injunction would almost surely be the product of

decreased union bargaining strength. Thus, an injunction

is the only practical and effective remedy here.

Therefore, the district court’s order enjoining further

unilateral changes and restoring the conditions that existed

before Tampa Airlines made such changes is AFFIRMED.”

court erred in failing to fix a bond. We conclude that Tampa Airlines

did not fairly present this issue in its brief, and therefore we decline

to address it.

l4a \

APPENDIX B

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 88-1935-CIV-HOEVELER

INTERNATIONAL ASSOCIATION OF MACHINISTS AND

AEROSPACE WORKERS and DISTRICT 100,

INTERNATIONAL ASSOCIATION OF MACHINISTS AND

AEROSPACE WORKERS,

Plaintiffs,

vs.

TRANSPORTES AEREOS MERCANTILES PAN

AMERICANOS, S.A., a/k/a TAMPA AIRLINES,

Defendant.

Filed August 4, 1989

Robert M. March

Clerk, U.S. District Court

for the Southern District of Florida—Miami

PRELIMINARY INJUNCTION

THIS CAUSE having come on to be heard before me in

open Court cn June 9, 1989, pursuant to the IAM’s Ver-

ified Amended Complaint for Bad Faith Bargaining, Anti-

Union Animus and Interference with LAM Designated Rep-

resentatives, all in violation of the Railway Labor Act, 45

U.S.C. § 151 et seg., and having reviewed the affidavits

and pleadings, in particular, those dealing with Motions

for temporary or preliminary relief, and further having

15a

heard argument of counsel and reviewing briefs and ar-

guments submitted, this Court now makes the following

Findings of Fact, Conclusions of Law and enters its Order

accordingly.

FINDINGS OF FACT

1. The Plaintiffs herein are labor organizations as de-

fined under the Railway Labor Act (RLA). The Interna-

tional Association of Machinists and Aerospace Workers,

AFL-CIO (LAM) is the exclusive bargaining representative

for the fleet service employees of Transportes Aereos Mer-

cantiles Pan Americanos, S.A., a/k/a Tampa Airlines. Dis-

trict 100 of the IAM is a duly established and chartered

district lodge of the IAM and is a delegate body made up

of representatives duly elected from local lodges within

the air transport system industry or locality in which Dis-

trict 100 is established.

2. District 100 has the duty of servicing members of

the various local lodges under its jurisdiction by securing

mutual protection, negotiating agreements and/or con-

tracts and policing the same with ultimate authority to

resolve grievances or bring the same to arbitration for

final and binding effect; and, if further needed, to bring

whatever actions are necessary on behalf of the member-

ship of the local lodges which it directly represents. In

this matter, District 100, on behalf of the IAM, is the

servicing agent for the said fleet service employees of

Tampa Airlines.

3. The Defendant, Tampa Airlines, is a common carrier

by air as defined by the RLA, 45 U.S.C. §§ 151 and 181,

et seq., respectively. Tampa Airlines is authorized to do

business within the State of Florida and has been and

continues to date to do business in Miami, Dade County,

Florida.

16a

4. The employees of Tampa Airlines, previously repre-

sented by the Teamsters Union, elected the LAM as their

bargaining representative on July 15, 1987.

5. On October 2, 1987, the union and the airline com-

menced bargaining over a new collective bargaining agree-

ment. At that time, the airline informed the union that

the existing rates of pay, rules and working conditions

were contained in an unratified agreement between the

airline and the Teamsters.!

6. In May, 1988, the airline fired several union employ-

ees without regard to previously extant seniority rules and

informed the union that there was no grievance procedure

in existence.

7. Also in May, 1988, the airline traffic manager in-

formed the shop steward that although he was a good

employee, his position with the union would not be tol-

erated. Moreover, the manager informed the shop steward

that the airline would not respect the union, its members

or its nights.

8. The union filed its original complaint on October 7,

1988, alleging bad faith bargaining based on unilateral

changes in working conditions during the period subse-

quent to the IAM being certified as the union bargaining

representative.

9. In January of 1989, the airline refused to engage in

further bargaining with the union.

10. In the spring of 1989, the airline cancelled the em-

ployees’ dependent group medical insurance without first

notifying the union or subsequently permitting discussion

‘There were two provisions of the unratified agreement that the

union admits were not part of the rates of pay, rules and working

conditions, however: the union security clause and the dues checkoff

clause. With those two exceptions, the union maintains that the un-

ratified contract embodied that status quo.

17a

on the subject. At the same time, the airline also decreased

the employees’ rights to bonus benefits, decreased flight

crews and increased flights per day, and laid off more

employees.

11. Based upon all of the above, the Plaintiffs then

sought the assistance of this Court by filing an Amended

Complaint, Motion for Temporary Restraining Order and/

or Preliminary or Permanent Injunction, together with af-

fidavits and supporting exhibits which, in part or in whole,

established all the above aforementioned Findings of Fact.

12. Any of the above Findings of Fact which may be

deemed Conclusions of Law are to be treated as such.

Having entered the above Findings of Fact, the Court

now enters its Conclusions of Law.

CONCLUSIONS OF LAW

1. This Court has jurisdiction under the Railway Labor

Act, 45 U.S.C. § 151, et seg., pursuant to 28 U.S.C. § 1331

(Federal Question) and 28 U.S.C. § 1337 (Acts of Congress

Regulating Commerce).

2. This Court further finds it has proper jurisdiction to

consider and maintain this action and to render the fol-

lowing decisions and orders as the subject matter herein

alleges violations of § 2, First, of the Railway Labor Act.

Additionally, this Court finds that the subject matter herein

may also be termed to be a “major dispute”. A “major

dispute” has been well defined in the case of Elgin, J. &

E.R. Co. v. Burley, 325 U.S. 711 (1945) as one which arises

from the making of new contracts or for changes of ex-

isting contracts.

3. The RLA, 45 U.S.C. § 151, et seg. was enacted in

1926 to encourage collective bargaining by railroads and

the employees representatives in order to prevent, if pos-

sible, interruptions to interstate commerce. Texas & N.O.R.

18a

Co. v. Railway Clerks, 281 U.S. 548 (1930); Detroit &

Toledo Shore Line R.R. Co. v. United Transportation

Union, 396 U.S. 142 (1962).

4. The purposes of the Act are set forth in Section 2,

45 U.S.C. § 15a:

“The purposes of the chapter are: (1) to avoid

any interruption to commerce or to the operation

of any carrier engaged therein; (2) to forbid any

limitation upon freedom of association among em-

ployees or any denial, as a condition of employ-

ment or otherwise, of the right of employees to

join a labor organization; (3) to provide for the

complete independence of carriers aad of em-

ployees in the matter of self-organization to carry

out the purposes of this chapter; (4) to provide

for the prompt and orderly settlement of all dis-

putes concerning rates of pay, rules or working

conditions; (5) to provide for the prompt and or-

derly settlement of all disputes growing out of

grievances or out of the interpretation or appli-

cation of agreements covering rates of pay, rules

or working conditions.”

5. These delineated purposes are not merely guidelines.

They have been codified into the Act. Section 2, First, 45

U.S.C. § 152 First of the Act states that

“Tt shall be the duty of all carriers, their officers,

agents, and employees to exert every reasonable

effort to make and maintain agreements con-

cerning rates of pay, rules, and working condi-

tions, and to settle all disputes, whether arising

out of the application of such agreements or oth-

erwise, in order to avoid any interruption to com-

merce or to the operation of any carrier growing

out of any dispute between the carrier and the

employees thereof.”

19a

6. This statutory pronouncement is the heart of the RLA

and, accordingly, is a right legally enforceable by the courts

in and of itself. Brotherhood of Railway Trainmen v. Jack-

sonville Terminal Co., 394 U.S. 369 (1969); Chicago &

North Western Ry. Co. v. United Transportation Union,

402 U.S. 570 (1971).

7. The present case involves Section 2 First of the Rail-

way Labor Act, commonly referred to as the duty to bar-

gain in good faith, which requires the parties to exert

every reasonable effort to meet, make and maintain agree-

ments concerning rates of pay, rules and working condi-

tions. The duty to exert every reasonable effort to make

and maintain agreements under the RLA has been judi-

cially held to be identical to the duty to bargain in good

faith mandated by Section 8 of the National Labor Rela-

tions Act (hereinafter NLRA), 29 U.S.C. §151, et seq.,

which makes it an unfair labor practice for either the

employer or labor organization to bargain collectively in

bad faith. Norfolk & P.B.L.R. Co. v. Brotherhood of Rail-

road Trainmen, 248 F.2d 34, 45 fn. 6 (4th Cir. 1957); JAM

v. National Ry. Labor Conf., 310 F. Supp. 905 (D.D.C.

1970); American Airlines, Inc. v. Air Lines Pilots Ass’n

Int’l., 169 F. Supp. 777 at 793, 794 (S.D.N.Y. 1958).?

8. Although some violations of the duty to bargain in

good faith require a subjective finding of bad faith by a

party, there are certain bad faith bargaining violations

? The United States Supreme Court in several decisions has permitted

courts to turn to the NLRA precedents for guidance in interpreting

obligations under the RLA. Although analogies between the two acts

should be drawn with care and with awareness of the differences be-

tween the statutory schemes, the parallels between §2 First of the

RLA and §8 of the NLRA, 29 U.S.C. § 158, have previously been

established by the courts to the extent that the obligations of those

two sections regarding good faith bargaining have been held to be

identical. TWA, Inc. v. Flight Attendants, ___ U.S. ___. (February 28,

1989); Chicago & Northwestern, supra; Jacksonville Terminal, supra;

National Ry. Labor Conf., supra.

20a

which do not require a subjective finding, they are per se

violations. Included among these per se violations of the

duty to bargain in good faith are the employer’s unilateral

changes in the terms and conditions of employment while

the parties are in the process of negotiating a collective

bargaining agreement. NLRB v. Katz, 369 U.S. 736 (1962).

The Katz case, which this Court finds to be persuasive in

the present dispute, involved a newly certified union’s at-

tempt to negotiate its first collective bargaining agreement

with the employer. The employer, during negotiations, uni-

laterally changed certain terms and conditions of employ-

ment without agreement by the union. The employer’s

unilateral changes during this critical time period were

deemed per se violations of the duty to bargain in good

faith and the employer was ordered to restore the working

conditions which existed prior to its unlawful actions. The

rationale for unilateral changes in rates of pay, hours and

working conditions being violations of the duty to bargain

in good faith without requiring a finding of subjective bad

faith, lies in the fact that the institution of unilateral

changes circumvents the employer’s duty to negotiate

which frustrates the basic policies which underpin collec-

tive bargaining. See Katz, supra at 743, 747; Seattle-First

Nat. Bank v. NLRB, 638 F.2d 1221, at 1227 (1981).

As in Cox, The Duty to Bargain in Good Faith, 71 Harv.

L. Rev. 1401:

“Unilateral action yields to much the same anal-

ysis. When taken during negotiations or upon

subjects on which the union wishes to bargain it

weakens the union by showing the employees that

it is useless to try to negotiate. If the employer

unilaterally raises wages or makes some other

concession, his conduct effectively tells the em-

ployees that without collective bargaining they

can secure advantages as great as, or possibly

greater than, those the union can, secure. Uni-

lateral changes made while the employee’s rep-

2la

resentative is seeking to bargain also interfere

with the normal course of negotiations by weak-

ening the union’s bargaining position. Conse-

quently, proof that an employer changed wages,

rates or other terms of employment in the midst

of contract negotiations ordinarily gives rise to

the inference that he had no intention of coming

to an agreement; the factual inference can be

negated by showing that there was a need for

immediate action or by proving that the negoti-

ations had reached an impasse.”’

This rationale pertaining to bad faith bargaining under

the NLRA has been cited with approval by the Supreme

Court and made applicable to cases under the RLA. See

Chicago & North Western, supra at 575 (‘‘...The bar-

gaining status of a union can be destroyed by going

through the motions of negotiating almost as easily as by

bluntly withholding recognition.’’)

9. When there is a violation of the duty to bargain in

good faith, the RLA compels the parties to revisit each

tainted step so as to enforce the purposes and require-

ments of the Act. Virginia Ry. Co. v. System Federation

No. 40, 300 U.S. 515 (1937); Chicago & North Western Ry.

Co., 471 F.2d 366 (7th Cir. 1971); cert. denied, 93 S. Ct.

965 (1973).

10. The Supreme Court’s apparently binding decision in

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

was disemboweled by subsequent case law. In Williams,

the Court held that in the absence of a collective bar-

gaining agreement, there is no prohibition against unilat-

eral action. There, railroad employees known as “‘red caps”

were protesting the unilateral decision by their employer

to withhold tips from wages, a decision made subsequent

to unionization and collective bargaining but prior to rat-

ification of an agreement.

22a

Although not directly overruled, Williams has been sub-

stantially eroded by The Detroit and Toledo Shore Line

R.R. Co. v. United Transp. Union, 396 U.S. 142, 143

(1969). There, the railroad contended that the status quo

to be maintained was only that of working conditions em-

bodied in the parties’ existing collective bargaining agree

ment. Id. The union, on the other hand, cabaniel—te

does the union in the instant case—that the conditions to

be preserved were the actual working conditions out of

which the dispute arose, irrespective of the existence of

a collective agreement. Jd. at 144. The Supreme Court

held that the status quo extends to “those actual, objective

working conditions out or which the dispute arose, and

clearly these conditions need not be covered in an existing

agreement.” Jd. at 153. Thus, applying the Court’s rea-

soning to the instant facts, it would appear that the ex-

istence of a collective bargaining agreement is immaterial

to the requirement that neither party take unilateral action

during the course of dispute resolution to alter the status

quo.’

* Although the union in Shore Line R.R. brought the action under

the disputes procedures of section 6 of the Act, the Court’s reasoning

applies to any of the three status quo provisions of the Act. Shore Line

R.R., 396 U.S. at 152. The Court held that the intent and effect of

each of the status quo provisions is identical. Jd. The reason the Court

gave for its rationale is that “these provisions, together with section

2 First, form an integrated, harmonious scheme for preserving the

status quo from the beginning of the major dispute through the final

30-day ‘cooling-off period.’’ Jd. Thus, whichever of the status quo pro-

visions is in dispute is irrelevant to the interpretation of the status

quo requirements.

At the hearing, the union argued at length that it was not seeking

relief under section 6 of the Act, 45 U.S.C. section 156, but under

section 2 First, 45 U.S.C. section 15la. Because the intent and effect

of these status quo provisions is identical, however, they must be in-

terpreted harmoniously. Therefore, in the instant case it is immaterial,

for the purpose of interpreting the scope of the status quo provisions,

which section of the Act is at issue.

28a

Williams, however, has been cited as binding precedent

precluding injunctive relief for an airline union—the same

union as in the instant case—where the employer airline

instituted unilateral changes in working conditions while

engaged in collective bargaining. International Ass’n of

Machinists & Aerospace Workers v. Trans World Airlines,

Inc., 839 F.2d 809 (D.C. Cir. 1988). Although the D.C.

Circuit acknowledged that Williams had been eroded by

subsequent case law, primarily by Shore Line R.R., it

nevertheless held that because Williams has never been

directly overruled, it remains binding precedent.‘ JAM v.

TWA, 839 F.2d at 814-15. This court chooses to be bound

by the reasoning and intent of the more recent Supreme

Court opinions which have recognized that neither party

should take unilateral action to alter the status quo during

the course of dispute resolution.

‘In the TWA case, the union initially sought to retroactively restore

working conditions to those that existed on the date on which IAM

was certified as the bargaining representative, and to enjoin prospective

unilateral changes. JAM v. TWA, 839 F.2d at 810. The district court

refused to roll back the unilateral changes, although it did enjoin pro-

spective changes. Jd at 812. Because the roll back determination was

unchallenged on appeal, the circuit court did not reach that issue; it

did, however, reverse the lower court’s order enjoining prospective

changes. Jd. at 812, 815. The D.C. Circuit held that where no collective

bargaining agreement was in force between the parties, the status quo

provisions of the RLA do not prohibit unilateral action. IAM v. TWA,

839 F.2d at 815.

The union argues that TWA is factually distinguishable from the

instant case. In TWA, the airline changed conditions prior to com-

mencement of bargaining. In the instant case, the union contends that

conditions were changed after bargaining commenced. Thus, the union

argues, while in the TWA case there were other means of vindicating

the purposes of the act, here there are none. The union’s argument,

however, reaches too far. The TWA court was concerned not with

whether negotiations had commenced, but with whether there was an

agreement in force when the changes were made. There is no indication

by the court that it found the timing of the commencement of bar-

gaining relevant to its decision.

24a

11. Additionally, this court determines that under the

duty to bargain in good faith, also embodied in section 2

First, 45 U.S.C. section 152a, the union is due relief. This

court may impart definition to the interpretation of the

duty to bargain in good faith from the National Labor

Relations Act, 29 U.S.C. section 158(a) (5) (1982 & Supp.

IV 1986) (the ““NLRA”’). Under the NLRA, the good faith

duty to bargain precludes unilateral changes in wages,

hours and other terms and conditions of employment any-

time after negotiations have commenced. NLRB v. Katz,

369 U.S. 736 (1962).

The NLRA may be used as a guide to determine whether

conduct by management or labor falls within the purview

of the RLA. Railroad Trainmen v. Terminal Co., 394 U.S.

369, 383 (1969). Thus, in order to determine whether the

airline’s conduct in unilaterally changing working condi-

tions can be construed as falling within the purview of the

good faith bargaining mandated by the RLA, one may look

to the NLRA for guidance.

In Katz, no collective bargaining agreement was in force

when management and labor commenced negotiations.

NLRB v. Katz, 369 U.S. at 740. During the second round

of mediated negotiations, the union filed charges that man-

agement had breached its duty to bargain in good faith

by unilaterally changing wages, rules and working condi-

tions after negotiations had commenced but before an

agreement was reached. Jd. The Supreme Court held that

unilateral action during the course of negotiations circum-

vents the duty to negotiate and frustrates the purposes

of the Act as clearly as would a flat refusal to bargain.

Id. at 747. This court, employing the reasoning of the Katz

court, finds that the airline’s mid-negotiation changes in

medical insurance coverage, wages, and layoff and griev-

ance procedures constitute a violation of the duty to bar-

gain in good faith.

25a

The Plaintiffs have and continue to suffer irreparable

injury by the carrier’s unilateral, material changes in the

working conditions and rates of pay of the fleet service

employees who the Plaintiffs, under law, are required to

properly represent. These changes undermine the Union

as the bargaining representative and if not enjoined would

completely destroy the certified bargaining representative

and would be violative of Section 2, Third of the Act which

proscribes interference by a party with the selection of

the other’s representative, as well as Section 2, First.

Based upon the Defendant’s above stated unilateral

changes in the terms and conditions of employment of its

fleet service employees there is a substantial likelihood that

the Plaintiffs will prevail on the merits of their claims and

a permanent injunction entered.

The irreparable injury to the Plaintiffs outweighs the

harm this injunction may do the Defendant. Not only is

the Union being undermined by the Defendant’s unilateral

changes in working conditions, the employees represented

by the Union are also losing their faith in the worth of

the present union and collective representation generally.

The employer, on the other hand, will be burdened only

with an inconvenience and some expense involved in res-

toring each of the unilateral changes. This Court legally

concludes that the Plaintiffs’ injury clearly outweighs the

Defendant’s harm.

The entry of the Preliminary Injunction is consistent

with the public interest in that it will require the Defendant

to adhere to its duty to bargain in good faith as required

by the Railway Labor Act and will prevent further un-

dermining of the Plaintiffs’ status as collective bargaining

representative.

WHEREFORE, based on all of the above, it is hereby

ORDERED AND DECREED that:

1. The Defendant herein, including its officers, directors,

agents and employees, shall cease and desist from bar-

26a

gaining in bad faith and unilaterally changing the terms

and conditions of employment while the parties are at-

tempting to negotiate a collective bargaining agreement.

2. The Defendant herein shall immediately restore the

grievance and arbitration procedures, and together with

the Plaintiffs, resolve through expedited arbitration all of

the alleged improper discharges; the alleged layoffs in dis-

regard to seniority order; and the alleged work crew com-

pliment changes.

3. The Defendant herein shall immediately restore all

insurance benefits and bonuses.

4. The Court hereby sets the hearing for Permanent

Injunction on the 5th day of September at 4:00 p.m., 1989,

and if the Plaintiffs continue to prevail, the Defendant

should be prepared to show cause as to why the monetary

unilateral changes, which include the insurance benefits

and bonuses, should not be restored to the date that they

were unilaterally and improperly changed.

DATED at Miami, Dade County, Florida on this 2nd day

of August, 1989.

/s/ William M. Hoeveler

WILLIAM M. HOEVELER

DISTRICT JUDGE

Copies to Counsel of Record

27a

APPENDIX C

THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 89-5912

INTERNATIONAL ASSOCIATION OF MACHINISTS AND

AEROSPACE WORKERS; DISTRICT 100,

INTERNATIONAL ASSOCIATION OF MACHINISTS AND

AEROSPACE WORKERS,

Plaintiffs-A ppellees,

versus

TRANSPORTES .AEREOS MERCANTILES PAN

AMERICANOS, S.A., a/k/a TAMPA AIRLINES,

Defendants-Appellants.

FILED May 3, 1991

U.S. Court of Appeals

Eleventh Circuit

Miguel J. Cortez, Clerk

On Appeal from the United States District Court for the

Southern District of Florida

ON PETITION(S) FOR REHEARING AND

SUGGESTION(S) OF REHEARING EN BANC

(ft as? -: a.) a 2 . a |

Before: HATCHETT and ANDERSON, Circuit Judges, and

ESCHBACH", Senior Circuit Judge.

* Honorable Jesse E. Eschbach, Senior U.S. Circuit Judge for the

Seventh Circuit, sitting by designation.

PER CURIAM:

(XX) The Petition(s) for Rehearing are DENIED and no

member of this panel nor other Judge in regular active

service on the Court having requested that the Court be

polled on rehearing en banc (Rule 35, Federal Rules of

Appellate Procedure; Eleventh Circuit Rule 35-5), the Sug-

gestion(s) of Rehearing En Banc are DENIED.

( ) The Petition(s) for Rehearing are DENIED and the

Court having been polled at the request of one of the

members of the Court and a majority of the Circuit Judges

who are in regular active service not having voted in favor

of it (Rule 35, Federal Rules of Appellate Procedure; Elev-

enth Circuit Rule 35-5), the Suggestion(s) of Rehearing En

Banc are also DENIED.

( ) A member of the Court in active service having re-

quired a poll on the reconsideration of this cause en banc,

and a majority of the judges in active service not having

voted in favor of it, Rehearing En Banc is DENIED.

ENTERED FOR THE COURT:

/s/ R. Lanier Anderson, III

United States Circuit Judge

29a

APPENDIX D

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 89-5912

INTERNATIONAL ASSOCIATION OF MACHINISTS AND

AEROSPACE WORKERS; DISTRICT 100,

INTERNATIONAL ASSOCIATION OF MACHINISTS AND

AEROSPACE WORKERS,

Plaintiff-Appellant,

versus

TRANSPORTES AEREOS MERCANTILES PAN

AMERICANOS, S.A., a/k/a TAMPA AIRLINES,

Defendant-Appellee.

Miguel J. Cortez, Clerk

FILED May 17, 1991

U.S. Court of Appeals

Eleventh Circuit

Appeal from the United States District Court for the

Southern District of Florida

ORDER:

( ) The motion of Appellant for (XX) stay (_ ) recall

: and stay issuance of the mandate pending petition for writ

: of certiorari is DENIED.

(XX) The motion of Appellant for (XX) stay (_) recall

and stay of the mandate pending petition for writ of

beedthaietie « H. ca eit bitin te

30a

certiorari is GRANTED to and including JULY 1, 1991,

the stay to continue in force until the final disposition of

the case by the Supreme Court, provided that within the

period mentioned above there shall be filed with the Clerk

of this Court the certificate of the Clerk of the Supreme

Court that the certiorari petition has been filed. The Clerk

shall issue the mandate upon the filing of a copy of an

order of the Supreme Court denying the writ, or upon

expiration of the stay granted herein, unless the above

mentioned certificate shall be filed with the Clerk of this

Court within that time.

( ) The motion of for a further stay of

the issuance of the mandate is GRANTED to and including

, under the same conditions as set forth

in the preceding paragraph.

( ) IT IS ORDERED that the motion of

for a further stay of the issuance of the mandate is DE-

NIED.

/s/ R. Lanier Anderson, III

UNITED STATES CIRCUIT JUDGE

net et aD TRAE a ote abe

3la

APPENDIX E

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 88-1935-CIV-HOEVELER

INTERNATIONAL ASSOCIATION OF MACHINISTS AND

AEROSPACE WORKERS, et al.,

Plaintiffs,

vs.

TRANSPORTES AEREOS MERCANTILES PAN

AMERICANOS, S.A., etc.,

Defendant.

AFFIDAVIT OF RODRIGO ARBOLEDA

(Attachments Omitted)

STATE OF FLORIDA)

Ss:

COUNTY OF DADE )

BEFORE ME, the undersigned authority, personally ap-

peared RODRIGO ARBOLEDA, who upon being duly

sworn, deposed and said:

1. Iam RODRIGO ARBOLEDA. Until 1989, I was the

General Manager, United States, for Tampa Airlines. I

held that position from February, 1985. I make this Af-

fidavit upon my personal knowledge.

2. At all time subsequent to the certification of the

IAM, Tampa Airlines has been ready, willing and able to

bargain in good faith with the IAM and has done so. To

that end, I directed that our attorney, Stuart A. Goldstein,

32a

engage in negotiations on our behalf with designated rep-

resentatives of the IAM. Mr. Goldstein made periodic re-

ports to me as negotiations progressed. The parties first

met in negotiations on November 12, 1987, at the Com-

pany’s offices at Miami International Airport. The meeting

consisted of a discussion by the Company and the Union

of their needs and desires with myself emphasizing on

behalf of the Company its frail financial position and the

need to make changes in working conditions to satisfy our

financial condition and to keep the Company viable. At

that time, the Company operated four aircraft, two of

which had been on the ground for approximately the past

year undergoing maintenance checks and maintenance

work totalling approximately two million dollars for each

aircraft.

3. By letter dated December 17, 1987, the IAM for-

warded to a contract proposal to me. In reality, this ‘‘pro-

posal’’ was a completed agreement between the IAM and

another airline, possibly with some changes made pertain-

ing to Tampa Airlines. A copy of this December 17, 1987

letter is attached as Exhibit A. The Company responded

to this letter through our attorney by letter dated Decem-

ber 21, 1987 (see Exhibit B attached hereto).

4. After this exchange of correspondence, I met with

our attorney and we prepared an analysis of the IAM’s

contract proposal as well as an analysis of issues we wished

to pursue in our own proposal. The Company subsequently

forwarded a proposal to the IAM.

5. The parties next met in negotiations on May 9 and

May 10, 1988. During the meeting on May 9, questions

were asked by representatives for each party regarding

the other’s proposal. On May 10, the parties discussed

issues such as consecutive days off, the thirty-minute meal

period, Article 2, and Article 3. These meetings were con-

ducted at the offices of our attorney and were attended

only by Mr. Goldstein and Mr. Haber.

33a

6. Thereafter, the parties met in direct bargaining on

June 27, 1988, June 30, 1988, July 7, 1988 and January

12, 1989. In those meetings, the parties discussed and

reached tentative agreements in whole or in part on the

following sections:

Article 1—Recognition; Article 2--Scope; Article 3—Job

classifications; Article 4—Seniority; Article 5—Filling of

vacancies; Article 6—Hours of service; Article 7—Over-

time; Article 8—Holidays; Article 9—Vacations; Article 10—

Free and reduced rate transportation; Article 11—Leaves

of absence without pay; Article 12—Sick leave; Article 13—

Military leave; Article 14—Displacement, reduction and

restoration in force; Article 15—Union representation; Ar-

ticle 16—Discipline and discharge; Article 17—Grievance

procedure; Article 18—System Board of Adjustment; Ar-

ticle 19—Uniforms; Article 20—Machines and equipment;

Article 21—Health and safety; Article 22—Bulletin boards;

Article 23—Equal treatment; Article 24—Existing Agree-

ment; Article 25—No strikes/no lockout; Article 26—Man-

agement rights; Article 27—General; Article 28—Mutual

Agreement. Attached hereto as Exhibit C is a copy of Mr.

Goldstein’s letter of July 8, 1988, to Mr. Haber setting

forth the substance of the negotiations to that point. On

August 19, 1988, Mr. Haber acknowledged the accuracy

of Mr. Goldstein’s letter of July 8th. See Exhibit D at-

tached.

7. The Union has been aware from the beginning that

Mr. Goldstein did not have authority to bind the Company

with respect to direct monetary items such as wages, ben-

efits and insurance.

8. Tampa Airli:.es has always been available on a rea-

sonable basis to meet with and negotiate with the IAM.

Despite the rhetoric in Mr. Haber’s Affidavit, the truth is

that often times he was unavailabie to meet for the pur-

pose of advancing negotiations. For example, see Mr. Gold-

stein’s letter of April 6, 1988, to Mr. Haber (Exhibit E)

34a

indicating Mr. Haber’s unavailability both in December and

in April due to vacations. See also a copy of Mr. Gold-

stein’s letter to Mr. Haber dated June 24, 1988, which

was in response to Mr. Haber’s letter of June 22 (Exhibit

F) which again misstated the Company’s availability to

negotiate. This attempt to “build a case” that the Com-

pany was unavailable to negotiate has continued into this

lawsuit and finds a place in Mr. Haber’s Affidavit as well

as in the proposed Amended Complaint.

9. Although I came to Tampa Airlines after the ne-

gotiations were concluded with the preceding Union (Team-

sters), I was advised by my superiors in the Company that

there was no Union contract in existence because neither

the Company nor the Union had ever signed any such

agreement. Rather, the negotiations had reached a certain

point, the Company refused to go beyond that point in

terms of further agreements, and the Teamsters, for what-

ever its reasons, chose not to pursue the issue. To my

knowledge, there had never been a union at Tampa Air-

lines prior to the Teamsters, and there has never been a

collective bargaining agreement in place at Tampa Air-

lines.

10. The Company has always retained the right to man-

age its business and to make changes which its manage-

ment deems appropriate in the conduct of its business.

That right has never been relinquished or restricted by a

collective bargaining agreement. In accordance with this

policy of making changes it deems appropriate or neces-

sary in the management of its business, the Company made

certain changes following the failure to reach an agree-

ment with the Teamsters, which changes incorporated

many of the items contained in the unexecuted Teamsters’

“contract”. Notwithstanding the implementation of those

unilateral changes, which no one has ever objected to, the

Company retained the right to make other changes it

deemed necessary or appropriate and has continued to do

sO.

35a

FURTHER AFFIANT SAYETH NAUGHT.

/s/ Rodrigo Arboleda

Rodrigo Arboleda

SWORN TO AND SUBSCRIBED before me, this 2

day of June , 1989.

/s/_ Notary Public

Notary Public, State of Florida

My Commission Expires: [stamped]

"een he lh ee

36a

APPENDIX F

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

CIVIL NO. 85-0125 HMF

UNION OF FLIGHT ATTENDANTS, LOCAL NO. 1

Plaintiff,

vs.

AIR MICRONESIA, INC.

Defendant.

Filed in the United States District

District of Hawaii Court

August 30, 1988

Walter A.Y.H. Chinn, Clerk

ORDER GRANTING IN PART AND DENYING IN PART

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

AND DENYING PLAINTIFF’S CROSS-MOTION FOR

PARTIAL SUMMARY JUDGMENT

Defendant’s motion for summary judgment and plaintiff's

cross-motion for partial summary judgment came on for

hearing on August 22, 1988. Gary G. Grimmer and Richard

L. Cys appeared on behalf of defendant. Ira L. Gottlieb

appeared on behalf of plaintiff. The court has considered

the submissicns and arguments of counsel, together with

the materials on file, and being fully apprised of the prem-

ises herein now rules as follows:

gt ae

37a

BACKGROUND

In 1968 Continental Airlines, Inc. executed an agree-

ment with the Trust Territory of the Pacific to provide

air transportation services in the Trust Territory. Conti-

nental joined with the United Micronesia Development As-

sociation and Aloha Airlines, Inc. to form defendant Air

Micronesia.

Under this agreement fifty percent of Air Micronesia’s

flight attendants were Continental employees and the re-

maining fifty percent were employees of Air Micronesia.

Working conditions for the Continental flight attendants

were governed by a collective bargaining agreement be-

tween Continental and the Union of Flight Attendants.

Flight attendants who were employees of Air Micronesia

had no collective bargaining agreement. Although Air Mi-

cronesia at times referred to the Continental collective

bargaining agreement when setting working conditions for

its own employees, it was under no obligation to do so.

On November 3, 1982 the National Mediation Board cer-

tified plaintiff Union of Flight Attendants Local 1 (UFA)

as the authorized employee representative of Air Micro-

nesia’s flight attendants. Although Air Micronesia (with

assistance from Continental) has bargained with UFA in-

termittently since certification and although the parties

have at times reached agreement on certain collective bar-

gaining issues, the parties have never executed a collective

bargaining agreement.

On September 24, 1983 Continental filed a Chapter 11

petition with the United States Bankruptcy Court for the

Southern District of Texas. On that same date Continental

furloughed its flight attendants, including those who were

flying in the service of Air Micronesia. A number of these

individuals applied for direct employment with Air Micro-

nesia which hired ten of these individuals, although at

lower wages.

Ee ee ge gt ee ee Oe ee ee ee ee ee ee a ee ee ee a a ere

On February 7, 1985 plaintiff filed this lawsuit alleging

violations of §§ 2, 5 and 6 of the Railway Labor Act (RLA).

45 U.S.C. § 151 et seg. Specifically, UFA’s complaint al-

leged that, between 1983 and 1985, Air Micronesia initi-

ated the following policies and actions in violation of the

RLA:

Complaint ¢ Allegation

11(a) Refused to provide information regarding

Air Micronesia finances and the relation-

ship between Continental and Air Micro-

nesia during 1984 bargaining sessions.

11(b) Changed probationary period for new em-

ployees from six to twelve months.

11(c) (i) Created two-tier system of pay and con-

ditions of employment.

11(c) (ii) Refused to’ provide pay raises to Air Mi-

cronesia flight attendants hired prior to

September 27, 1983.

11(c) (iii) Restricted attendants’ ability to trade

trips.

11(c) (iv) Changed bidding options for reserve flight

duty.

11(c) (v) Expanded First Flight Attendant duties.

11(c) (vi) Created policy of illness verification for

some, but not all, flight attendants.

11(c) (vii) Required flight attendants to clean air-

craft.

11(c) (viii) Created new attendance and tardiness pol-

icy.

11(c) (ix) Discontinued policy of notifying attend-

ants of flight delays.

ee ee ee a —

11(c) (x)

11(¢) (xi)

11(c) (xii)

11(c) (xiii)

11(c) (xiv)

11(c) (xv)

11(c) (xvi)

11(c) (xvii)

11(c) (xviii)

11(c) (xix)

11(c) (xx)

11(c) (xxi)

11(c) (xxii)

11(c) (xxiii)

39a

Required that flight attendant be respon-

sible for ‘“‘change fund” and liquor money.

Changed monthly bid runs from 75-80

hours to 85-90 hours.

Required flight attendants to remain on

board aircraft in Japan and Manila.

Instituted, then disbanded, flight attend-

ant concerns committees.

Eliminated opportunity to earn extra pay

for speaking Chinese.

Reduced First Flight Attendant pay.

Eliminated opportunity to earn extra pay

for speaking Japanese.

Eliminated pay for second and third days

of recurrent training.

Denied direct access to master schedule.

Reduced size of flight attendant lounge.

Increased flight time from 94 and 1/2

hours to 100 hours.

Reduced duration and availability of ma-

ternity leave.

Withdrew offers and contract proposals

during negotiations without good cause.

Refused to offer employment to former

Continental flight attendants on basis of

their union affiliation.

On April 5, 1988 the court granted defendant’s motion

for partial summary judgment, holding that Hawaii’s one-

year statute of limitations applies to plaintiff's cause of

action under the RLA. Although the court found that

plaintiff's claims were barred to the extent that they ac-

40a

crued on or before February 7, 1984, it declined to address

the issue of which claims, if any, are actually barred.

DEFENDANT’S ARGUMENTS

Air Micronesia has now filed a second motion for sum-

mary judgment. First, it argues that eighteen of UFA’s

twenty-five claims are barred by the applicable statute of

limitations.

Second, it argues that it is entitled to summary judg-

ment on the claim in ¢ 11(a) of plaintiff's complaint, be-

cause the RLA imposes no duty on Air Micronesia to

provide the information plaintiff sought.

Third, Air Micronesia argues that it is entitled to sum-

mary judgment on all of plaintiff's claims that it violated

the “status quo” requirements of the RLA because (1)

there is no duty to maintain the status quo in the absence

of an earlier collective bargaining agreement and (2) if the

status quo requirements do apply, any violations were of

minimal significance.

Finally, Air Micronesia argues that it is entitled to sum-

mary judgment on plaintiff's claim that it has violated its

duty under the RLA to negotiate with UFA in good faith.

PLAINTIFF’S ARGUMENTS

UFA opposes defendant’s motion and has filed its own

motion for partial summary judgment. First, it argues that

Air Micronesia has not satisfied its burden of showing that

UFA had actual or constructive notice of Air Micronesia’s

alleged violations prior to February 7, 1984. Therefore,

Air Micronesia is not entitled to summary judgment on

the statute of limitations issue.

Second, UFA argues that the RLA imposed a duty on

Air Micronesia to provide information concerning its fi-

nancial position and concerning the authority of its ne-

4la

gotiators. Therefore, plaintiff is entitled to summary

judgment on the claim in ¢ 11(a) of its complaint.

Third, UFA argues that the RLA imposed a duty on

Air Micronesia not to alter the status quo concerning flight

attendant working conditions without first exhausting the

procedures outlined in 45 U.S.C. § 156. For this reason,

and because the violations were not minimal, UFA argues

that it is entitled to summary judgment on all its claimed

“status quo” violations.

Finally, UFA argues that Air Micronesia’s actions raise

a genuine issue of material fact concerning whether or not

defendant bargained with UFA in good faith.

SUMMARY JUDGMENT STANDARD

Rule 56(c) of the Federal Rules of Civil Procedure pro-

vides that summary judgment shall be entered when:

... the pleadings, depositions, answers to inter-

rogatories, and admissions on file, together with

the affidavits, if any, show that there is no gen-

uine issue as to any material fact and that the

moving party is entitled to a judgment as a mat-

ter of law.

The moving party has the initial burden of “identifying

for the court those portions of the materials on file in the

case that it believes demonstrate the absence of any gen-

uine issue of material fact.’”’ T.W. Electrical Service, Inc.

v. Pacific Electrical Contractors Ass’n. 809 F.2d 626, 630

(9th Cir. 1987). citing Celotex Corp. v. Catrett, 477 U.S.

317, 323, 106 S. Ct. 2548, 2553 (1986). The movant must

be able to show “the absence of a material and triable

issue of fact,” Richards v. Neilsen Freight Lines, 810 F.2d

898, 902 (9th Cir. 1987), although it need not necessarily

advance affidavits or similar materials to negate the ex-

istence of an issue on which the non-moving party will

bear the burden of proof at trial. Cal. Arch. Bldg. Prod.

42a

v. Franciscan Ceramics, 818 F.2d 1466, 1468 (9th Cir.

1987), cert. denied, 108 S. Ct. 698 (1988). See Celotex, 477

U.S. at 325, 106 S. Ct. at 2553. But cf. id., 477 U.S. at

328, 106 S. Ct. at 2555-56 (White, J., concurring).

If the moving party meets its burden, then the opposing

party may not defeat a motion for summary judgment in

the absence of any significant probative evidence tending

to support his legal theory. Commodity Futures Trading

Comm’n. v. Savage, 611 F.2d 270, 282 (9th Cir. 1979). The

opposing party cannot stand on his pleadings, nor can he

simply assert that he will be able to discredit the movant’s

evidence at trial. See T.W. Electrical, 809 F.2d at 6380.

Similarly, legal memoranda and oral argument are not

evidence and do not create issues of fact capable of de-

feating an otherwise valid motion for summary judgment.

British Airways Bd. v. Boeing Co., 585 F.2d 946, 952 (9th

Cir. 1978), cert. denied, 440 U.S. 981 (1979). Moreover,

“if the factual context makes the nonmoving party’s claim

implausible, that party must come forward with more per-

suasive evidence than would otherwise be necessary to

show that there is a genuine issue for trial.” Franciscan

Ceramics, 818 F.2d at 1468, citing Matsushita Electric

Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,

587, 106 S. Ct. 1348, 1356 (1986).

The standard for a grant of summary judgment reflects

the standard governing the grant of a directed verdict.

See Eisenberg v. Insurance Co. of North America, 815 F.2d

1285, 1289, citing Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 250, 106 S. Ct. 2505, 2512 (1986). Thus, the

question is whether “‘reasonable minds could differ as to

the import of the evidence.”’ Jd.

However, when “direct evidence” produced by the mov-

ing party conflicts with “direct evidence’”’ produced by the

party opposing summary judgment, “the judge must as-

sume the truth of the evidence set forth by the nonmoving

party with respect to that fact.” T.W. Electrical, 809 F.2d

id ee are

hes

at 631. Also, inferences from the facts must be drawn in

the light most favorable to the non-moving party. Jd. In-

ferences may be drawn both from underlying facts that

are not in dispute, as well as from disputed facts which

the judge is required to resolve in favor of the non-moving

party. Id.

STATUTE OF LIMITATIONS

Air Micronesia argues that eighteen of UFA’s twenty-

five claims against it are barred by the applicable one-

year statute of limitations. These claims are found in par-

agraphs 11(b), 11(c) (i}(v), (vii), {ix)}(xvii) and (xx)-(xxi). Air

Micronesia contends that in each case the statute of lim-

itations began to run on the date that it first implemented

the policy giving rise to the alleged violation. Thus when,

for example, on October 1, 1983 Air Micronesia changed

its probation period for new employees from six to twelve

months ({ 11(b) of the complaint), UFA had one year—

until October 1, 1984—to file suit over the change. Because

it did not do so, defendant argues, this claim is barred.

UFA, however, contends that the statute of limitations

did not begin to run until it received actual or constructive

notice of each Air Micronesia policy change. UF A contends

that Air Micronesia never notified it of any policy changes

and, in some cases, actually took steps designed to conceal

changes from UFA.

The law of this circuit is clear on this point. ‘“‘A cause

of action accrues, and the statute of limitations begins to

run, when a plaintiff knows or has reason to know of the

injury that is the basis of the action.’’ Hotel Employees

Health Trust v. Elks Lodge 1450, 827 F.2d 1324, 1328 (9th

Cir. 1987). Air Micronesia is not entitled to summary judg-

ment on any claim, based upon the running of the statute

of limitations, unless it can demonstrate that UFA knew

or had reason to know of the alleged violation.

44a

Thus, the statute of limitations does not necessarily bar

plaintiffs claim in ¢ 11(b) of its complaint. There is no

evidence that Ai> Micronesia informed either the union or

its members of the new policy until July 1984 when it

terminated a flight attendant. Air Micronesia certainly can-

not implement a policy change, keep that change to itself

for the better part of a year, and then benefit from the

statute of limitations. Defendant has failed to carry its

burden of showing that the statute of limitations began

to run on plaintiff's ¢ 11(b) claim prior to February 7,

1984. See T.W. Electrical, 809 F.2d at 630.

With two sets of exceptions, Air Micronesia has failed

to carry its initial burden with respect to the other claims

it now argues are time-barred. (Defendant’s attempt to

carry this burden in its reply memorandum is ineffective

because plaintiff has no opportunity to respond.)

The first set of exceptions involve the claims found in

44 11(c) (iii) and (vii) of plaintiff's complaint. In each of

these cases there is evidence that defendant’s flight at-

tendant supervisor, Martha Woodward, issued a memo-

randum outlining the alleged policy change. Air Micronesia

has thus satisfied its burden of demonstrating that UFA

had notice of the change.

Plaintiff, however, argues that these memoranda were

placed in a looseleaf binder in the crew lounge and that

access to this binder was difficult. The affidavit of Juanita

Capulong, UFA’s local executive chairperson, supports this

contention. See Capulong aff. ¢ 8. Although UFA’s evi-

dence is weak, it does raise a genuine issue concerning

whether UFA knew or should have known about the

changes.

The other set of exceptions involves alleged policy

changes that had such an immediate and apparent impact

on Air Micronesia flight attendants that they could not be

missed. Plaintiff admits that prior to February 7, 1984 it

received such notice of the policy changes that form the

45a

basis for its claims in ¢{ 11(c) (i), (ii), (iv), (xi), (xiii) and

(xxiii). These six claims are therefore barred by the statute

of limitations and summary judgment is appropriate.

DEFENDANT’S DUTY TO PROVIDE INFORMATION

In September and October 1984 the parties held several

additional collective bargaining sessions. During these ses-

sions Air Micronesia withdrew several proposals to which

it had previously agreed. One reason for this action may

have been Air Micronesia’s belief that it could no longer

afford these proposals. UFA made oral and written re-

quests that Air Micronesia provide the union with books

ar.d records to substantiate this belief. Air Micronesia re-

fused.

During these same meetings, several Continental exec-

utives acted as Air Micronesia’s lead negotiators, appar-

ently for the first time. UFA made oral and written

requests that Air Micronesia (1) identify its collective bar-

gaining representatives and (2) state what authority, if

any, the Continental executives had to represent Air Mi-

cronesia. Defendant did not respond.

Air Micronesia argues that it is entitled to summary

judgment on plaintiff’s claim that its failure to provide the

above information violates the RLA. Defendant argues that

the RLA imposes no duty to provide this information.

UFA argues that Air Micronesia does have a duty to

disclose information concerning its financial position and

concerning the authority of its negotiators. In support of

this claim, UFA relies upon an RLA provision that imposes

a general duty on all parties “to exert every reasonable

effort to make and maintain agreements concerning rates

of pay, rules, and working conditions ....” 45 U.S.C.

§ 152 First. Because Air Micronesia has failed to disclose

the requested information, it has not exerted ‘“‘every rea-

sonable effort’’ to conclude a collective bargaining agree-

ment with UFA.

46a

Section 152 First does not require Air Micronesia to

disclose financial information to substantiate its bargaining

position or to explain the source of its designated repre-

sentatives’ authority. The Court of Appeals for the Ninth

Circuit has recently held that requiring such disclosure as

part of an employer’s duty to make every reasonable effort

to avoid labor disputes “‘is incompatible with the aims and

structure of the Railway Labor Act.” Pacific Fruit Ex-

press v. Union Pacific, 826 F.2d 920, 923 (9th Cir. 1987),

cert. denied, 56 U.S.L.W. 3860 (June 20, 1988).

Plaintiff relies upon NLRB v. Truitt Manufacturing Co.,

351 U.S. 149, 76 S. Ct. 758 (1956). In that case, the

Supreme Court held that § 204(a) (1) of the National Labor

Relations Act requires such disclosure in certain circum-

stances, Truitt Manufacturing, 351 U.S. at 152-53, 76 S.

Ct. at 755-56. UFA argues that this court should use the

Truitt rationale to imply such a duty under the RLA. In

Pacific Fruit, however, the court of appeals rejected this

same argument, holding that the duty under the NLRA

to bargain in good faith is not identical to the obligation

under the RLA to exert every reasonable effort to settle

disputes. Pacific Fruit, 826 F.2d at 922. Furthermore, the

court of appeals found that Congress did not intend that

the RLA “place the courts at the heart of the bargaining

process whenever either side .. . sought information about

the other.” Jd. at 923.

Plaintiff argues that the facts of this case are distin-

guishable from those in Pacific Fruit and therefore Truitt,

not Pacific Fruit, should apply to this case. However, the

court can see no material distinction between this case

and Pacific Fruit. Defendants in both cases refused to

provide information to support their collective bargaining

positions. Plaintiffs in both cases argued that this refusal

violates § 152, First of the RLA.

Even if the two cases are distinguishable, the court’s

ruling in Pacific Fruit rested upon the “aims and struc-

47a

ture” of the RLA. Thus the breadth of the decision makes

it difficult to avoid. This court therefore concludes that

the RLA does not require Air Micronesia to disclose in-

formation about its finances or about its negotiators. Air

Micronesia is entitled to summary judgment on plaintiff's

q 11(a) claim.

DEFENDANT’S DUTY TO MAINTAIN THE STATUS QUO

Air Micronesia next argues that it is entitled to sum-

mary judgment on all of plaintiff's claims that it violated

the “status quo’ requirements of the RLA because (1)

there is no duty to maintain the status quo in the absence

of an earlier collective bargaining agreement and (2) if the

status quo requirements do apply, any violations were of

minimal significance.

UFA contends that the RLA does impose a duty on Air

Micronesia not to alter flight attendant working conditions

without first exhausting the procedures outlined in 45

U.S.C. § 156. That section prohibits an employer (or a

union) from unilaterally changing ‘‘agreements affecting

rates of pay, rules, or working conditions’ without first

exhausting an elaborate procedure designed to resolve the

dispute. 45 U.S.C. § 156. UFA alleges that Air Micronesia

unilaterally altered flight attendant rates of pay, rules and

working conditions without first submitting to § 156 pro-

cedures. These allegations are contained in {4 11(b) and

1l(c) of plaintiff's complaint. Because defendant unilater-

ally altered the status quo and because its changes were

not minimal, UFA argues that it is entitled to summary

judgment on all these claims.

There is no genuine dispute over the fact that a col-

lective bargaining agreement did not exist between Air

Micronesia and UFA. Neither is there a genuine dispute

over the fact that Air Micronesia made a large number

of unilateral policy changes affecting flight attendant pay,

rules and working conditions. The issue for this court to

48a

decide, therefore, is the legal question of whether the sta-

tus quo provisions of § 156 apply to an employer who has

no pre-existing collective bargaining agreement with a

union.

In 1942, the Supreme Court held that § 156 only applies

to situations in which the status quo reflects a pre-existing

collective bargaining agreement. Williams v. Jacksonville

Terminal Co., 315 U.S. 386, 402-03, 62 S. Ct. 659, 669

(1942). In that case, the Brotherhood of Railway and

Steamship Clerks complained that the Union Terminal

Company had unilaterally altered the terms under which

station redcaps retained tips. The change took place after

the redcaps had designated the Brotherhood as its bar-

gaining representative, but before negotiations on a col-

lective bargaining agreement took place.

The Court held that the RLA “‘is phrased so as to leave

no doubt that only agreements reached after collective

bargaining were covered” by the status quo provisions of

§ 156. Jd., 315 U.S. at 400, 62 S. Ct. at 668. Without

such a pre-existing collective bargaining agreement, the

parties remain free to alter the terms of their relationship.

Thus, if an employer alters an employee’s working: con-

ditions, and if the employee continues to work, a new

contract reflecting the alteration arises between the par-

ties. Id., 315 U.S. at 667, 62 S. Ct. at 39B.

Subsequent cases have undercut this holding. Although

these cases do not involve status quo changes in the ab-

sence of a pre-existing collective bargaining agreement (the

factual situation in both Williams and this case), plaintiff

urges the court to conclude that Williams is defunct and

may be ignored. The court declines to do so.

The first case to erode the Williams holding is Detroit

and Toledo Shore Line R.R. v. United Transportation

Union, 396 U.S. 142, 90 S. Ct. 294 (1969). In that case,

a pre-existing collective bargaining agreement was in place,

but management made unilateral changes concerning work-

49a

ing conditions not expressly covered in the agreement. The

Supreme Court held that the status quo provisions of § 156

applied to such changes, stating that ‘‘the status quo ex-

tends to those actual, objective working conditions out of

which the dispute arose, and clearly these conditions need

not be covered in an existing agreement.” Jd. at 153, 90

S.Ct. at 301. In spite of this language, the Court declined

to overrule Williams. Instead, it distinguished Williams

as a case involving no pre-existing collective bargaining

agreement.

Williams was further eroded in Chicago and North-

western R.R. v. United Transportation Union, 402 U.S.

570, 91 S. Ct. 1731 (1971). In that case a prior collective

bargaining agreement had expired. The employer sought

an injunction to prevent the union from calling a strike.

The Supreme Court found that a party’s duty under § 152

First to exert every reasonable effort to reach an agree-

ment authorized it to seek an injunction to prevent any

unilateral change in the status quo, even where a collective

bargaining agreement has expired. Chicago and North-

western, 402 U.S. at 583, 91 S. Ct. at 1738.

The case before the court today differs from both Shore

Line and Chicago and Northwestern in that Air Micronesia

has never entered into a collective bargaining agreement

with UFA. Although negotiations have dragged on for

years and although the parties have at times agreed on

certain terms, these factors do not create a collective bar-

gaining agreement in the absence of the parties’ consent.

The Williams case, if it stands for anything, stands for

the proposition that unilateral changes in the status quo

do not violate § 156, unless that status quo results from

a pre-existing collective bargaining agreement. The

Supreme Court has not faced this issue since Williams,

nor has it ever overruled the Williams holding. This court

is therefore bound to follow that case this issue.

50a

The Court of Appeals for the District of Columbia Cir-

cuit has recently reached the same conclusion. Interna-

tional Association of Machinists v. Trans World Airlines,

839 F.2d 809, 814 (D.C. Cir. 1988). In that case, the court

reversed the district court’s decision to enjoin defendant’s

unilateral changes in working conditions, even though no

pre-existing collective bargaining agreement had been ex-

ecuted. After reviewing the above case law, the court of

appeals concluded that Williams, “‘though weakened, is not

dead.”

Thus, no power to enjoin unilateral changes in

working conditions by management flows from

Section 6 of the Act in the absence of pre-ex-

| isting, in place, collective bargaining agreements.

Ta.

The-court reaches the same conclusion and finds that

Air Micronesia was under no duty to follow the procedures

of 45 U.S.C. § 156. Therefore, defendant is entitled to

summary judgment on plaintiff’s claims based upon § 156

as set forth in {{ 11(b) and 11(c).

DEFENDANT’S DUTY TO BARGAIN IN GOOD FAITH

The only claims remaining against Air Micronesia are

allegations that it has violated its duty to negotiate with

UFA in good faith. Air Micronesia argues that it is entitled

to summary judgment on these claims as well. Specifically,

it argues that plaintiff’s bad faith claims stem from two

incidents: (1) Air Micronesia’s decision to withdraw con-

tract proposals upon *vhich it had previously agreed (com-

plaint q¢ 11(c) (xxii)) and (2) its alleged refusal to offer

employment to former Continental flight attendants due

to their union affiliation (complaint q 11(c) (xxiii)).

A fair reading of plaintiff's complaint shows that UFA’s

bad faith claims are not confined to these two incidents.

On the contrary, { 11 of plaintiff's complaint outlines a

5la

pattern of bad faith conduct on a large number of issues.

UFA argues that Air Micronesia’s conduct, viewed as a

whole, indicates that it did not intend to conclude a col-

lective bargaining agreement with the union and that it

went out of its way to frustrate contract negotiations.

Air Micronesia was under a duty to “exert every rea-

sonable effort” to make a collective bargaining agreement

with the union. 45 U.S.C. § 152 First. This does not mean

that the airline was under an obligation to negotiate in

good faith. Pacific Fruit, 826 F.2d at 922 (§ 152 First

duty “‘is not identical to the obligation to bargain in good

faith under the NLRA’’). Instead, § 152 First merely pro-

hibits Air Micronesia from bargaining in bad faith. Chicago

& North Western, 402 U.S. at 579 n.11, 91 S. Ct. at 1736

n.ll. The difference is more than one of semantics.

Whereas good faith bargaining implies that Air Micronesia

wishes to reach a fair agreement, bad faith bargaining

implies that Air Micronesia does not wish to reach any

agreement at all, even one that is unfair to UFA.

Plaintiff's burden at trial therefore is to show that Air

Micronesia did not wish to reach any collective bargaining

agreement at all. On this motion for summary judgment

plaintiff must raise a genuine issue of fact in support of

this legal theory.

Plaintiff cannot satisfy this burden by pointing to evi-

dence that defendant did not provide information as al-

leged in 11(a), or that defendant violated the status quo

as alleged in 44 11(b) and (c). The court has held that the

RLA does not impose such obligations upon Air Micro-

nesia. It would be inconsistent for this court to hold that

the general language of 45 U.S.C. §152 First requires

imposes a more stringent duty than the specific language

of such sections as § 156.

The court has questioned plaintiff's counsel closely at

oral argument in an attempt to learn which of its other

claims in { 11 constitute evidence of bad faith bargaining.

52a

Counsel could only offer persuasive argument in support

of one claim: that found in ¢ 11(c) (22). Plaintiff has not

persuaded the court that any other event constitutes a

relevant indicia of bad faith.

Since the event described in ¢ 11(c) (xxii) of plaintiff's

complaint raises an issue of fact about whether Air Mi-

cronesia bargained with UFA in bad faith, defendant’s

motion for summary judgment on plaintiff’s bad faith claim

is denied to this extent. In all other respects, however,

defendant’s motion is granted.

SUMMARY

Defendant’s motion for summary judgment should be

GRANTED IN PART AND DENIED IN PART. Plaintiff's

cross-motion for partial summary judgment should be DE-

NIED.

IT IS SO ORDERED.

DATED: Honolulu, Hawaii, _ August 30, 1988

/s/ Harold M. Fong

UNITED STATES DISTRICT JUDGE

UFA V. AIR MICRONESIA -

Civ. No. 85-0125

ORDER GRANTING IN PART AND DENYING IN PART

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND

DENYING PLAINTIFF’S CROSS-MOTION FOR PARTIAL

SUMMARY JUDGMENT

53a

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MEMORANDU M*

No. 88-15754

D.C. No. CV-85-125-HMF

UNION OF FLIGHT ATTENDANTS, LOCAL NO. 1,

Plaintiff-Appellant,

Vs.

AIR MICRONESIA, INC.,

Defendant-Appellee.

Filed May 10, 1990

Cathy A. Catterson, Clerk

U.S. Court of Appeals

Appeal from the United States District Court

for the District of Hawaii

Harold M. Fong, District Judge, Presiding

Argued and Submitted April 10, 1990

Honolulu, Hawaii

Before: FARRIS, PREGERSON, and RYMER, Circuit

Judges

* This disposition is not appropriate for publication and may not be

cited to or by the courts of this circuit except as provided by 9th Cir.

R. 36-3.

54a

The district court’s orders of April 5, 1988, Union of

Flight Attendants, Local No. 1 v. Air Micronesia, Inc., 684

F. Supp. 1520 (D. Hawaii 1988), and August 30, 1988,

Union of Flight Attendants, Local No. 1 v. Air Micronesia,

Inc., Civ. No. 85-0125 HMF (D. Hawaii Aug. 30, 1988),

are ‘affirmed for the reasons stated in those orders.

55a

APPENDIX G

RAILWAY LABOR ACT PROVISIONS

45 U.S.C. § 15la. General purposes

The purposes of the chapter are: (1) To avoid any in-

terruption to commerce or to the operation of any carrier

engaged therein; (2) to forbid any limitation upon freedom

of association among employees or any denial, as a con-

dition of employment or otherwise, of the right of em-

ployees to join a labor organization; (3) to provide for the

complete independence of carriers and of employees in the

matter of self-organization to carry out the purposes of

this chapter; (4) to provide for the prompt and orderly

settlement of all disputes concerning rates of pay, rules,

or working conditions; (5) to provide for the prompt and

orderly settlement of all disputes growing out of griev-

ances or out of the interpretation or application of agree-

ments covering rates of pay, rules, or working conditions.

45 U.S.C. § 152. General duties

First. Duty of carriers and employees to settle dis-

putes

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 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.

45 U.S.C. § 155. Functions of Mediation Board

First. Disputes within jurisdiction of Mediation Board

The parties, or either party, to a dispute between an

employee or grour £ employees and a carrier may invoke

‘6a

the services of the Mediation Board in any of the following

cases:

(a) A dispute concerning changes in rates-of pay, rules,

or working conditions not adjusted by the parties in con-

ference.

(b) Any other dispute not referable to the National Rail-

road Adjustment Board and not adjusted in conference

between the parties or where conferences are refused.

The Mediation Board may proffer its services in case

any labor emergency is found by it to exist at any time.

In either event the said Board shall promptly put itself

in communication with the parties to such controversy, and

shall use its best efforts, by mediation, to bring them to

agreement. If such efforts to bring about an amicable set-

tlement through mediation shall be unsuccessful, the said

Board shall at once endeavor as its final required action

(except as provided in paragraph third of this section and

in section 160 of this title) to induce the parties to submit

their controversy to arbitration, in accordance with the

provisions of this chapter.

If arbitration at the request of the Board shall be re-

fused by one or both parties, the Board shall at once notify

both parties in writing that its mediatory efforts have

failed and for thirty days thereafter, unless in the inter-

vening period the parties agree to arbitration, or an emer-

gency board shall be created under section 160 of this

title, no change shall be made in the rates of pay, rules,

or working conditions or established practices in effect

prior to the time the dispute arose.

Second. Interpretation of agreement

In any case in which a controversy arises over the mean-

ing or the application of any agreement reached through

mediation under the provisions of this chapter, either party

to the said agreement, or both, may apply to the Mediation

57a

Board for an interpretation of the meaning or application

of such agreement. The said Board shall upon receipt of

such request notify the parties to the controversy, and

after a hearing of both sides give its interpretation within

thirty days.

Third. Duties of Board with respect to arbitration of

disputes; arbitrators; acknowledgment of

agreement; notice to arbitrators; reconvening

of arbitrators; filing contracts with Board;

custody of records and documents

The Mediation Board shall have the following duties with

respect to the-arbitration of disputes under sectior 157 of

this title: /

(a) Om failure of the arbitrators named by the parties

to agree on the remaining arbitrator or arbitrators within

the time set by section 157 of this title, it shall be the

duty of the Mediation Board to name such remaining ar-

bitrator or arbitrators. It shall be the duty of the Board

in naming such arbitrator or arbitrators to appoint only

those whom the Board shall deem wholly disinterested in

the controversy to be arbitrated and impartial and without

bias as between the parties to such arbitration. Should,

however, the Board name an arbitrator or arbitrators not

so disinterested and impartial, then, upon proper investi-

gation and presentation of the facts, the Board shall

promptly remove such arbitrator.

If an arbitrator named by the Mediation Board in ac-

cordance with the provisions of this chapter, shall be re-

moved by such Board as provided by this chapter, or if

such an arbitrator refuses or is unable to serve, it shall

be the duty of the Mediation Board, promptly, to select

another arbitrator, in the same manner as provided in this

chapter for an original appointment by the Mediation

Board

(b) Any member of the Mediation Board is authorized

to take the acknowledgement of an agreement to arbitrate

58a

under this chapter. When so acknowledged, or when ac-

knowledged by the parties before a notary public or the

clerk of a district court or a court of appeals of the United

States, such agreement to arbitrate shall be delivered to

a member of said Board or transmitted to said Board, to

be filed in its office.

the Mediation Board, or with one of its members, as pro-

vided by this section, and when the said Board has been

furnished the names of the arbitrators chosen by the par-

ties to the controversy it shall be the duty of the Board

to cause a notice in writing to be served upon said ar-

bitrators, notifying them of their appointment, requesting

them to meet promptly to name the remaining arbitrator

or arbitrators, necessary to complete the Board of Arbi-

tration, and advising them of the period within which, as

provided by the agreement to arbitrate, they are empow-

ered to name such arbitrator or arbitrators.

(d) Either party to an arbitration desiring the recon-

vening of a board of arbitration to pass upon any contro-

versy arising over the meaning or application of an award

may so notify the Mediation Board in writing, stating in

such notice the question or questions to be submitted to

such reconvened Board. The Mediation Board shall there-

upon promptly communicate with the members of the

Board of Arbitration, or a subcommittee of such Board

appointed for such purpose pursuant to a provision in the

agreement to arbitrate, and arrange for the reconvening

of said Board of Arbitration or subcommittee, and shall

notify the respective parties to the controversy of the time

and place at which the Board, or the subcommittee, will

meet for hearings upon the matters in controversy to be

submitted to it. No evidence other than that contained in

the record filed with tiie original award shall be received

or considered by such reconvened Board or subcommittee,

except such evidence as may be necessary to illustrate the

interpretations suggested by the parties. If any member

59a

of the original Board is unable or unwilling to serve on

such reconvened Board or subcommittee thereof, another

arbitrator shall be named in the same manner and with

the same powers and duties as such original arbitrator.

(e) Within sixty days after June 21, 1934, every carrier

shall file with the Mediation Board a copy of each cortract

with its employees in effect on the lst day of April 1934,

covering rates of pay, rules, and working conditions. If no

contract with any craft or class of its employees has been

entered into, the carrier shall file with the Mediation Board

a statement of that fact, including also a statement of the

rates of pay, rules, and working conditions applicable in

dealing with such craft or class. When any new contract

is executed or change is made in an existing contract with

any class or craft of its employees covering rates of pay,

rules, or working conditions, or in those rates of pay, rules,

and working conditions of employees not covered by the

contract, the carrier shall file the same with the Mediation

Board within thirty days after such new contract or change

in existing contract has been executed or rates of pay,

rules, and working conditions have been made effective.

(f) The Mediation Board shall be the custodian of all

papers and documents heretofore filed with or transferred

to the Board of Mediation bearing upon the settlement,

adjustment, or determination of disputes between carriers

and their employees or upon mediation or arbitration pro-

ceedings held under or pursuant to the provisions of any

Act of Congress in respect thereto; and the President is

authorized to designate a custodian of the records and

property of the Board of Mediation until the transfer and

delivery of such records to the Mediation Board and to

require the transfer and delviery to the Mediation Board

of any and all such papers and documents filed with it or

in its possession.

60a

45 U.S.C. § 156. Procedure in changing rates of pay,

rules, and working conditions

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

conference between the representatives of the parties in-

terested in such intended changes shall be agreed upon

within ten days after the receipt of said notice, and said

time shall be within the thirty days provided in the notice.

In every case where such notice of intended change has

been given, or conferences are being held with reference

thereto, or the services of the Mediation Board have been

requested by either party, or said Board has proffered its

services, rates of pay, rules, or working conditions shall

not be altered by the carrier until the controversy has

been finally acted upon, as required by section 155 of this

title, by the Mediation Board, unless a period of ten days

has elapsed after termination of conferences without re-

quest for or proffer of the services of the Mediation Board.

45 U.S.C. § 157. Arbitration

First. Submission of controversy to arbitration

Whenever a controversy shall arise between a carrier

or carriers and its or their employees which is not settled

either in conference between representatives of the parties

or by the appropriate adjustment board or through me-

diation, in the manner provided in sections 151 to 156 of

this title, such controversy may, by agreement of the par-

ties to such controversy, be submitted to the arbitration

of a board of three (or, if the parties to the controversy

so stipulate, of six) persons: Provided, however, that the

failure or refusal of either party to submit to a controversy

to arbitration shall not be construed as a violation of any

legal obligation imposed upon such party by the terms of

this chapter or otherwise.

6la

45 U.S.C. § 160. Emergency Board

If a dispute between a carrier and its employees be not

adjusted under the foregoing provisions of this chapter

and should, in the judgment of the Mediation Board,

threaten substantially to interrupt interstate commerce to

a degree such as to deprive any section of the country

of essential transportation service, the Mediation Board

shall notify the President, who may thereupon, in his dis-

cretion, create a board to investigate and report respect-

ing such dispute. Such board shall be composed of such

number of persons as to the President may seem desir-

able: Provided, however, that no member appointed shall

be pecuniarily or otherwise interested in any organization

of employees or any carrier. The compensation of the

members of any such board fixed by the President. Such

board shall be created separately in each instance and it

shall investigate promptly the facts as to the dispute and

make a report thereon to the President within thirty days

from the date of its creation.

There is authorized to be appropriated such sums as

may be necessary for the expenses of such board, including

the compensation and the necessary traveling expenses

and expenses actually incurred for subsistence, of the

members of the board. All expenditures of the board shall

be allowed and paid on the presentation of itemized vouch-

ers therefor approved by the chairman.

After the creation of such board and for thirty days

after such board has made its report to the President, no

change, except by agreement, shall be made by the parties

to the controversy in the conditions out of which the dis-

pute arose.

45 U.S.C. § 181. Application of subchapter I to carriers

by air

All of the provisions of subchapter I of this chapter

except section 153 of this title are extended to and shal!

62a

cover every common carrier by air engaged in interstate

or foreign commerce, and every carrier by air transporting

mail for or under contract with the United States Gov-

ernment, and every air pilot or other person who performs

any work as an employee or subordinate official of such

carrier or carriers, subject to its or their continuing au-

thority to supervise and direct the manner of rendition of

his service.

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.