Petition for Writ of Certiorari — TWA, INC. v. Independent Federation of Flight Attendants

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No. Ze. ns, Court, U.S,

IN THE OCT. | per

Supreme Court of the Unitgdeatggrso. vn.

OCTOBER TERM 1987

TRANS WORLD AIRLINES, INC.,

Petitioner,

Vv.

THE INDEPENDENT FEDERATION OF FLIGHT ATTENDANTS,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

MURRAY GARTNER

PROSKAUER ROSE GOETZ

& MENDELSOHN

300 Park Avenue

New York, New York 10022

(212) 909-7000

Counsel of Record for Petitioner

PAUL E. DONNELLY

STINSON MAG & FIZZELI

920 Main Street

Kansas City, Missouri 64105

MARK A. BUCKSTEIN

MICHAEL A. KATZ

605 Third Avenue

New York, New York 10158

Of Counsel Attorneys for Petitioner

CAROLE O’BLENES

GREGORY ARENSON

a -

QUESTIONS PRESENTED

1. Does the Railway Labor Act require that permanent

employees of an air carrier, who exercised their right to work

during an economic strike, must lose their jobs at the end of

the unsuccessful strike in order to create vacancies for full-

term strikers with more “seniority”’—who were permanently

replaced by new hires and for whom no vacancies would

otherwise exist—when there is no back-to-work agreement and

no provision of the former collective bargaining agreement

authorizes the exercise of “seniority” rights to obtain reinstate-

ment after a strike?

2. (a) Is a carrier required to displace permanent replace-

ments, who have been hired and treated in all respects as

employees and are engaged in required training under the

carrier’s supervision, and give their jobs to strikers at the end

of an unsuccessful economic strike on the rationale that the

replacements are not “employees” under the Railway Labor

Act?

(b) Alternatively, are such employees not “permanent

replacements” simply because they are still in training when the

union calls off its unsuccessful strike?

PARTIES

The petitioner is Trans World Airlines, Inc. (“TWA”), a

“common carrier by air” within the meaning of Title II (45

U.S.C. §§ 181 ef seq.) of the Railway Labor Act. TWA has no

parent company and no affiliates or subsidiaries, other than

wholly-owned subsidiaries.

The respondent is The Independent Federation of Flight

Attendants (“IFFA” or “the Union”), an unincorporated labor

organization designated as the bargaining representative under

the Railway Labor Act for TWA employees in the flight

attendant craft or class.

TABLE OF CONTENTS

PAGE

‘Wee CS AGERGUUESS. . o.oo cccccecccessceunenneuennee V

eee 2

A Pe 2

Seatutes Havebved .... oc ccccssccccesesceouseunnaneeeee 3

Statement of the Case ....cccccccvcssescsecuneeeneen 3

Reasons fer Granting Che WR ....ccccsccscccesneeen 9

1. The Eighth Circuit’s Decision That Crossover

Flight Attendants Must Be Displaced By Full-

Term Strikers With More “Seniority” Is Contrary

To Principles Established By This Court ........ 12

Il. The Decision Below Is In Conflict, On The Cross-

over Issue, With The Sixth And Seventh Circuits

And, On The Trainee Issue, With The Second And

SEveNGR CIPCMES. . oo ccccsevecceuneeneneeee 15

Ill. The Decision Below Distorts Mackay Radio And

Erie Resistor And Applies That Distortion To The

Railway Labor Act; It Also Ignores Contrary

National Labor Relations Board Precedent .... . . 22

IV. The Extraordinary Reliance Of The Court Below

On Misstatements Of Law And Fact Is Such An

Extreme Departure From Accepted Judicial Pro-

ceedings As To Warrant Summary Reversal By

Vials Cammt .. nc ccccccscccseeneun ene 25

CORMCRBOIOR. . oo oc ccc cccccccceccueene nee 29

ill

PAGE

Appendix A

Opinion and Judgment of the U.S. Court of

Appeals for the Eighth Circuit ................. la

Appendix B

Order of the U.S. Court of Appeals for the Eighth

Circuit Denying Petition for Rehearing and Sug-

gestion for Rehearing En Banc................. 16a

Appendix C

Order of the U.S. Court of Appeals for the Eighth

Cee ee Cec ec eeceececceces l7a

Appendix D

Memorandum and Order of the U.S. District

Court for the Western District of Missouri ...... 18a

Appendix E

Order of the U.S. District Court for the Western

District of Missouri Granting Stay Pending Ap-

Appendix F

EE Ee 42a

Appendix G

IFFA’s Corrected First Amended Complaint . . . . . 47a

Appendix H

Stipulations, filed tuly 21, 1986, with Excerpt

from Exhibit 1 (1981-1984 Collective Bargaining

Agreement between TWA and IFFA)............ S7a

iv Vv

PAGE

Appendix | TABLE OF AUTHORITIES

Plaintiff IFFA’s Motion for Partial Summary

IED Ssbnl chveciéaccuducsc ee 64a Cases: PAGE

Appendix J Air Line Pilots Ass'n v. United Air Lines, 802 F.2d 886

(7th Cir. 1986), cert. denied, 107 S. Ct. 1605 (1987). .18, 28

Defendant TWA’s Cross-Motion for Partial Sum- Air Line Pilots Ass’n v. United Air Lines, 616 F. Supp.

SE CUI 6a ec eiced cence cate 66a 849 (N.D. Ill. 1985), amending 614 F. Supp. 1020

Appendix K SN Bt nc uctineeseecbeceneuen ckeuuntcueunnTss 18, 28

Scheduled Skyways, 10 N.M.B. 488 (1983) ..._.. éfe Air Micronesia, 10 N.M.B. 11 (1982). ..... 2.2.2.6... 19

Anderson, Clayton & Co., 120 N.L.R.B. 1208 (1958) .. 20

Belknap, Inc. v. Hale, 463 U.S. 491 (1983) ........ 12, 20, 24

Bingham Willamette, 282 N.L.R.B. No. 165 (1987) .... 17

\ Bio-Science Laboratories, 209 N.L.R.B. 796 (1974) .... 17

Bowman Transportation, Inc., 142 N.L.R.B. 1093

Piuievedie uhend6e4 nGanacuhceed sudan wueks 20

C.H. Guenther & Son, Inc., 174 N.L.R.B. 1202 (1969),

enforced, 427 F.2d 983 (Sth Cir.), cert. denied, 400

nc nc ancutuchitendvubasneseouk tun 20

George Banta Co. v. NLRB, 686 F.2d 10 (D.C. Cir.

1982), cert. denied, 460 U.S. 1082 (1983) ........... 23, 28

Giddings & Lewis, Inc. v. NLRB, 675 F.2d 926 (7th Cir.

Piniadceks duncecetensenuuenesschind 12, 16, 17, 24, 28

Harding Glass Industries, Inc. v. NLRB, 672 F.2d 1330

GS SN otéuthenas ens cuacesutobacanseuess 24

HF. Binch Co. v. NLRB, 456 F.2d 357 (2d Cir.

Seanad ck ab okcddabidcdatecutausedusdeeeiuane 12, 20-21

Home Insulation Service, 255 N.L.R.B. 311, enforced

without opinion, 665 F.2d 352 (Sth Cir. 1981) ....... 20

Hot Shoppes, Inc., 146 N.L.R.B. 802 (1964)... 2... ... 20

PAGE

Indiana Desk Co., 276 N.L.R.B. 1429 (1985) ......... 17

International Ass'n of Machinists v. J.L. Clark Co. , 471

F.2d 694 (7th Cir. 1972)... 2... ccc nee 10, 16, 22, 28

Kennedy & Cohen of Georgia, Inc., 218 N.L.R.B. 1175

oie ee aE TILT: EU SA tae ae Cn lang 17

L.E.M., Inc., 198 N.L.R.B. 694 (1972)... 2.6... 20

Lodges 743 and 1746, international Ass'n of Machinists

v. United Aircraft Corp., $34 F.d 422 (2d Cir. 1975),

cert. denied, 429 U.S. 825 (1976) .................. 1s

NLRB v. American Olean Tile Co., No. 86-5308, to be

reported at 826 F.2d 1496 (6th Cir. August 13,

Ppa chedud cen cidedeSiteks ccadcace dueckccoe.«.: 12, 16

VLRB v. Brown, 380 U.S. 278 (1968).......... 6... 24

NLRB v. Cutting, Inc., 701 F.2d 689 (7th Cir

PEE ee udaicbnaddncs Gebeledabede doko a 12, 20, 21

NLRB v. Erie Resistor Corp., 373 U.S. 22) (1963) ... passim

NLRB vy. Fleetwood Trailer Co., 389 U.S. 375 (1967) .. 14-15

NLRB v. Harrison Ready Mix C oncrete, Inc., 770 F.2d

78 (6th Cir. 1985)

NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333

(1938)

NLRB v. Wells Fargo Armored Service C orp., 397 F.2d

hESC SRS RU i7

Pattern Makers’ League of North America y. NLRB,

I TN 26

Randall, Division of Textron, Inc. vy. NL RB, 687 F.2d

1240 (8th Cir. 1982), cert. denied, 461 U.S. 914

SON ib Ch aNd wxdiedd bGKs Uke vabeceecenecce. 23

vil

PAGE

The Texas Co., 93 N.L.R.B. 1358 (1951), review granted

on other grounds, 198 F.2d $40 (9th Cir. ee 20

Trans World Airlines v. The Independent Federation of

Flight Attendants, 809 F.2d 483 (8th Cir), cert.

granted, 107 S. Ct. 3183 (1987)... ..--. 6-6 eee e eee 3, 30

Vulcan Hart Corp. v. NLRB, 718 F.2d 269 (8th Cir. =

POUR. gcc ccccccccvecccccccenccccvesesecuseueces

Statutes

2B U.S.C. & 1QSALE). wwe ccc ccc eccseeeesecesecses 2

28 U.S.C. § 1292 (a)... . eee eee eee eee erent tees 7

TB U.S.C. 8 USBE nc cccvecccccccccccesccsecceseess 6

2B U.S.C. B USSF . nn cccccccccccsccevceccesscccecens 6

National Labor Relations Act

Section 2(3), 29 U.S.C. § 152G3)...... Rbcudssuaes 3, 14, 22

Section 8(aX(3), 29 U.S.C. § 158 (a3)... . ~~~. +--+ 26

Railway Labor Act

Section 1, Fifth, 45 U.S.C. § 151, Fifth ...........- 3

Section 2, Third, 45 U.S.C. § 152, Third .........-- 3, 26

Section 2, Fourth, 45 U.S.C. § 152, Fourth....... 3, 18, 26

Section 2, Eleventh, 45 U.S.C. § 152, Eleventh. . . 3, 19, 26

Section 6, 45 U.S.C. § 186... 2... - 6. eee eee eee 5

Section 201, 45 U.S.C. § 181... .. 2... 6 eee ee ee eee 3

Section 202, 45 U.S.C. § 182 . .... 6... 6. ee eee rere 3

Vill

PAGE

Rules

Rn WO ED awh goce EC ES nos atl 12

We Cech eco E 8 4). 8 oneal NP 25, 29

Other Authorities

R. Gorman, Basic Text on Labor Law nakeenuas 26

M. Hutcheson, et al., Employer's Guide to Strike Plan-

ning and Prevention (1985) ....................... 23

C. Morris, The Developing Labor Law Se See fe 26

IN THE

Supreme Court of the United States

OCTOBER TERM 1987

No.

TRANS WORLD AIRLINES, INC.,

Petitioner,

|»

THE INDEPENDENT FEDERATION OF FLIGHT ATTENDANTS,

Respondent.

_——

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Petitioner TWA respectfully prays that a writ of certiorari

issue to review so much of the judgment of the United States

Court of Appeals for the Eighth Circuit entered on May 26,

1987 as holds (i) that some 1,300 flight attendants employed by

TWA, who exercised their right not to strike, should have been

forced to surrender their jobs to more “senior” strikers when

the Union called off its unsuccessful strike, and (ii) that some

400 permanent replacements for strikers should have been

required to forfeit their jobs to strikers because the replace-

ments had not quite completed their training when the strike

ended.

OPINIONS BELOW

The opinion and judgment of the United States Court of

Appeals for the Eighth Circuit, reported at 819 F.2d 839, 125

— 2544, is reprinted as Appendix A.' It affirms in pert

an reverses in part a judgment of the United States District

Court for the Western District of Missouri, St. Joseph Divi

sion, based on a memorandum and order reported at 643 E

Supp. 470, 123 L.R.R.M. 2337, which is reprinted as Appendix

JURISDICTION

TWA timely filed a Petition

Rehearing En Banc. The court below entered an order (re-

a as Appendix B) denying the petition on ‘August 31

: 4 - ircuit Judges Bowman, Fagg and Gibson noted that

“ro any have granted the petition; Circuit Judges Ross and

Magill did not Participate.) This petition is filed within ninety

2. iction of this Court to review

the judgment on Petition for certiorari rests upon Section

1254(1) of the Judicial Code (28 U.S.C. § 1254(1))

The Pages of the appendices to this

—— *

On September 24, 1987, the Eighth C

Petition are referred to as

ircuit entered an order (reprinted as

STATUTES INVOLVED

The relevant statutory provisions are the Railway Labor Act

(“RLA” or “the Act”), as amended, Sections 1, Fifth (45

U.S.C. § 151, Fifth); 2, Third (45 U.S.C. § 152, Third); 2,

Fourth (45 U.S.C. § 152, Fourth); 2, Eleventh (45 U.S.C.

§ 152, Eleventh); 201 (45 U.S.C. § 181); and 202 (45 U.S.C.

§ 182); and the National Labor Relations Act (“NLRA"”), as

amended, Section 2(3) (29 U.S.C. § 152(3)). They are reprinted

as Appendix F. :

STATEMENT OF THE CASE

As foreshadowed by petitioner’s reply brief on petition for

certiorari which was granted in the earlier case between the

same parties and is presently pending in this Court,’ petitioner

now requests the Court to review the second decision of the

Eighth Circuit in the TWA-IFFA litigation. That strange deci-

sion, with flawed logic and a remarkable succession of mis-

Statements of law and fact, purports to be based on the

inapplicable’ prior decision of the court below that the union

security clauses of the 1981-84 TWA-IFFA contract continue in

effect.

The decision below holds that employees who chose not to

strike (“crossovers”) should have been forced to give up their

jobs at the end of the strike, in May 1986, to the unsuccessful

strikers. In other words, the very employees who were required

by the prior decision of the Eighth Circuit to pay dues to the

respondent union from April, 1986 to now in order to keep

2 Trans World Airlines, inc. v. The Independent Federation of Flight

Attendant. (“the TWA Action”), No. 86-1650, cert. granted, June 8, 1987.

3 It is simply incomprehensible how or why the obligation of employ-

ees tO pay dues to a union, against their will, should require those employees

to give up their jobs to unreinstated strikers on the basis of a use of

“seniority” that was not provided for even in the contract that contained the

union security clauses, the continued existence of which is at issue in No. 86-

1650.

their jobs’ must surrender those jobs to strikers who have

greater length of service. The court below so held even though

the old agreement (as the district court found) did not provide

for the use of seniority to return from a Strike, and the Union

failed to reach a new agreement with TWA about any terms or

conditions of employment, much less about a way in which the

permanently replaced strikers might come back to work.

At the same time, the court correctly acknowledged that

some 2,400 permanent replacements could keep their jobs at

strike’s end. The anomalous result is that new hires with

minimal length of employment who have been hired as perma-

nent replacements for strikers are protected in their jobs, as

this Court has held they must be, but permanent employees

with considerably more time in the employ of the carrier—who

elected not to support the strike, or to return to work at a time

when vacancies existed—must surrender their jobs when the

strike comes to an unsuccessful end, to the very strikers who

were replaced by the new hires or who had become unnecessary

because the work force had decreased. The Eighth Circuit

nonetheless reversed the district court’s clearly correct decision

that crossovers were entitled to at least as much protection in

their jobs as new hives.

In another untenable distortion of the law with respect to the

reinstatement of strikers, the court below said that some 400

new flight attendants, hired as permanent replacements, must

give up their jobs to unsuccessful strikers because those re-

placements had not quite completed their training when the

union called off the strike. The Eighth Circuit affirmed the

district court on this aspect of the case but disavowed its

rationale. The district court had created an admittedly unpre-

cedented “training school” exception to the permanent replace-

ment rule of Mackay Radio, saying that new hires did not

qualify as permanent replacements unless they completed their

training within two days after the strike ended. The Eighth

Circuit, however, said that the flight attendants in training

4 There is no question that those monies were used by IFFA to finance

the litigation that has now resulted in the decision that the dues-payers must

lose their jobs.

when the strike ended were not “employees” at all under the

RLA because they did not perform any services for the

carrier—despite its recital of their services as trainees under the

direction of and in the pay of the carrier. Alternatively, the

court below held that the trainees would not qualify as “per

manent replacements” under the rationale of NLRA decisions.

Summary of Facts

TWA and IFFA were parties to a collective bargaining

agreement with a stated term from August 1, 1981 to July 31,

1984. Following written notice under Section 6 of the RLA (45

U.S.C. § 156), negotiations for a new agreement began in

March 1984 and proceeded, without success, through the steps

required by the RLA, including direct negotiation, mediation

and the final 30-day cooling-off period. On March 7, _e

approximately two years after negotiations began, IFFA calle

a strike against TWA. For purposes - this swared “4 “9 been

that the strike was over only econom ,

pare to avoid interruption to its services, TWA operated

with those flight attendants who wished to continue or resume

working and hired permanent replacements for the roe

flight attendants to complete its workforce. In the first week o

the strike, TWA hired approximately 1,200 permanent replace-

ments and thereafter, up to May 15, 1986, an additional 1,600,

some 400 of whom were about to complete their training when

the Union called off its unsuccessful strike. (59a, 6a) Those

1,600 permanent replacements, who attended TWA’s training

program during the strike, at TWA’s facilities and under TWA’s

supervision, were paid by TWA as flight attendants, were

covered by all employee benefit plans and began accruing flight

attendant seniority on the day they entered training.

5 On March $, 1986, just prior to the strike, IFFA filed an action in

the district court (No. 86-6030-CV-SJ-6) alleging violation by TWA ee

RLA by failing to bargain as required by Section 2, First. In that ae

IFFA seeks, among other things, a return to the status quo conditions on a

before March 6, 1986, and the reinstatement of all full-term srthers. That

action is pending in the district court, awaiting decision on TWA's motion to

dismiss at the close of plaintiff's case.

Some 1,280 crossover flight attendants were also working on

May 17, 1986 (61a), when IFFA, on behalf of Striking flight

attendants, offered to return to work—although there was no

back-to-work agreement and no successor agreement to the

1981-1984 Agreement. There were fewer than 200 flight atten-

dant vacancies to be filled at that time: TWA filled those

vacancies by rehiring strikers.

The District Court Decision

IFFA commenced this action by filing a complaint on May

30, 1986 in the district court. Jurisdiction was invoked pursu-

ant to the RLA (45 U.S.C. §§ 151 er seq.) and Sections 133)

and 1337 of the Judicial Code (28 U.S.C. §§ 1331, 1337).

IFFA’s first amended complaint alleged two claims. In Count

1, the Union sought a declaratory judgment and appropriate

injunctive relief requiring TWA, as of May 17, 1986, to

reinstate approximately 3,000 full-term strikers, displacing

some 1,200 replacements hired during the first week of the

strike and the last 400 hired before May 17, 1986, as well as all

the crossovers, on the ground that the flight attendants to be

displaced were not permanent replacements. In Count Il, IFFA

sought similar relief, as to all replacements, on the ground that

TWA had no business justification for hiring permanent re-

placements. On July 21, 1986, IFFA moved for partial sum-

mary judgment solely on Count I; TWA’s cross-motion for

partial summary judgment was also limited to Count I.

In deciding the cross-motions for partial summary judg-

ment, the district court divided the permanent replacements

into two groups, splitting off the approximately 463 flight

attendants who were in various Stages of completing training

on May 17, 1986. Relying on the seminal decision of NLRB vy.

Mackay Radio & Telegraph Co., 304 U.S. 333 (1938)

(“Mackay Radio”), the district court held that fully-trained

new hires could not be displaced by economic strikers. It

created, however, what it characterized as an unprecedented

“ “training school exception’ to the Mackay Radio rule” (40a)

that would permit strikers to displace the permanent replace-

ments who had not quite completed their training on May 17.

With respect to the crossovers, relying on the principles of

Mackay Radio and upon this Court’s decision in NLRB . . Erie

Resistor Corp., 373 U.S. 221, 232 (1963) (“Erie Resistor ) that

“an employer may operate his plant during a strike and at its

conclusion need not discharge those who worked during re

strike in order to make way for returning strikers, the district

court held that none of the crossovers were subject to displace-

unreinstated strikers. (25a) |

“Teen stayed its order for the displacement of the flight

attendants in training, pending appeal, because it believed the

issue to be “close and lacking in precedent.” (40a)

The Court of Appeals Decision

Citing Mackay Radio, the Eighth Circuit affirmed” the

district court’s judgment that the new hires, other than the

“trainees,” were employed as permanent replacements and

therefore were not subject to displacement by returning eco-

nomic strikers. It rejected the district court’s formulation of a

“training school exception” for permanent replacements,

which allowed a two-day period after the end of the strike for

completion of training (14a), but nevertheless affirmed the

decision that the flight attendants in training were subject to

displacement by returning strikers. The Eighth Circuit’s curi-

ous rationale—which had not even been argued —was that the

flight attendants in training, although on TWA $ payroll and

treated in all respects as employees, were not employees

under the RLA. (11-12a) Alternatively, applying a so-called

“balancing test” that it purported to find in Mackay Radio, the

court concluded that unreinstated strikers were entitled to the

positions held by the trainees because TWA had shown “no

6 The Eighth Circuit had jurisdiction, under 28 U.S.C. § 1292(a), to

review the district court's decision because it both granted and denied

injunctive relief.

7 The parties stipulated that the flight attendants in traming “were

hired as TWA employees on their first day of training.” (60a)

_— 8

business justification” for continuing to employ the replace-

ments after the strike ended. (13-14a)*

The court below acknowledged that the “trainees” had

actually been hired as permanent replacements for striking

flight attendants, had been paid flight attendant salaries, had

received all flight attendant benefits and had accrued flight

attendant seniority. (2-3a)’ It held, however that

The RLA does not extend its coverage based upon the

employer’s labelling of persons as employees or the pay-

ment of salary. [Emphasis added] Rather, RLA coverage

is determined by the work the person performs [emphasis

in Original] under supervision of the employer. (12a)

The court found that the “trainees” had not performed work

for TWA “by any stretch of the imagination” (12a)—although

their training was essential to TWA, and the National Media-

tion Board, the agency charged with the primary responsibility

of determining who are employees under the RLA, has held

that. trainees in the employ of a carrier are “employees.”

Scheduled Skyways, 10 \.M.B. 488 (1983) (reprinted as Ap-

pendix K).

Proceeding on its unprecedented course, the Eighth Circuit

reversed the district court’s holding with respect to the cross-

overs, reasoning that the crossovers could not be “considered

permanent replacements” because, under its decision in the

TWA Action, “the union security clause . . . remains in effect

. . .” and “all cross-overs must retain their union member-

ship.” (7a) Therefore, it said:

8 The Union's claim that TWA did not have a business justification

for treating new hires (including the “trainees”) as permanent replacements

was contained in a separate Count Il of the complaint and was not even

before the district court on the parties’ cross-motions for summary jude-

ment, which were limited to Cownt I.

9 It also acknowledged that “[t}he training of new people to fill

Strikers’ positions was appropriate in fulfilling TWA’s [legitimate] interest.”

(13a)

. . . TWA may not accord cross-overs permanent replace-

ment status and prevent full-term strikers from displacing

cross-overs with less seniority because such action imper-

missibly discriminates among union members based on

the degree of their union activity. (7a; footnote omitted)

The court below relied on Erie Resistor, where this Court

prohibited the grant of “super-seniority” to those who worked

during a strike while holding that an employer need not

discharge those employees in order to provide places for

strikers."” At no point in its opinion did the Eighth Circuit

identify the source of i its apparent view that strikers are entitled

to reinstatement in seniority order, or make any mention of the

district court’s finding that the 1981-84 contract between IFFA

and TWA “does not authorize the exercise of seniority rights to

obtain reinstatement after a strike.” (22a) Nor did it acknowl-

edge that TWA had done nothing to give the crossovers the

kind of preferential treatment disapproved in Erie Resistor,

but simply left them in the jobs to which they returned during

the strike.

The court stayed its mandate pending certiorari proceedings.

(17a)

REASONS FOR GRANTING THE WRIT

Both aspects of the decision below establish novel and

irrational departures from well understood and long accepted

relationships between management and labor, strikers and non-

strikers and the Railway Labor Act and the National Labor

Relations Act. Until this case,

@ No court or administrative agency has suggested that

positions occupied by early returning strikers must be

treated as available vacancies at the end of a strike;

10 ~—s- The super-seniority granted in Erie Resistor would have applied in

the event of future layoffs after full-term strikers had returned to work; it

had nothing to do with the right of the crossovers to remain in their jobs at

the end of the strike.

to be reinstated in seniority order, absent a back-to-

work agreement so providing;

¢ No court or administrative agency, under the RLA or

the NLRA, has required the displacement of permanent

employees in order to make room for returning eco-

nomic strikers (cf. International Ass'n of Machinists v.

J.L. Clark Co., 471 F.2d 694 (7th Cir. 1972), discussed

infra, pp. 16 n.15, 28);

Board has applied the “balancing test” that the Eighth

Circuit purported to find in Mackay Radio, or required

an employer to show “business justification” for con-

tinuing to employ permanent replacements after a

strike ends;

has concluded that employees in training are not “em-

ployees” within the meaning of the RLA; and

* No case has held that permanent replacements for

economic strikers must forfeit their jobs to returning

strikers unless the replacements are fully trained before

the strikers offer to return to work.

Thus, the decision below radically alters the balance of bar-

gaining power between management and unions, distorting and

misapplying this Court's decisions in NLRB v. Mackay Radio

& Telegraph Co., 304 U.S. 333 (1938) and NLRB v. Erie

Resistor Corp., 373 U.S. 221 (1963).

The practical effects of the Eighth Circuit’s unprecedented

and illogical decision are to deprive TWA (and other employ-

ers) of one of the principal self-help weapons in response to a

strike (/.e., the right to retain employees who choose to work

during a strike) and to diminish the right of some 1,300 flight

attendants in this case (and future crossovers in other cases) to

refrain from engaging in concerted activity against their em-

ployer so as not to put their jobs at risk. It also creates the

anomaly that employees newly hired as replacements for

strikers after the strike begins (who have minimal length of

service) need not yield to strikers’ job claims (unless they have

not completed training), but employees with years of service,

who exercised their right not to join the strike (or to abandon it

and return to work before the strike ended) must yield their

jobs to the same strikers.'' The Eighth Circuit’s decision, if not

reversed, will eliminate the principal motivation that employees

in a bargaining group who are “junior” to strikers have to

return to work during a strike, and will force employers to

replace strikers with new hires rather than have the benefit,

during a strike, of the services of the willing experienced

employees they would prefer.'”

The Eighth Circuit acknowledged that “economic strikers

are entitled to reinstatement only as vacancies occur,” and that

an employer “is not required to discharge permanent replace-

ments in order to rehire striking employees.” (Sa) It failed to

cite any authority, because there is none, for the view that TWA

was obligated to create vacancies for “full-term strikers” (/.e.,

those who did not return during the strike) by displacing

permanent employees—whether new hires, earlier returning

strikers or non-strikers. Purporting to rely on Mackay Radio,

the court below nonetheless held that only new-hire permanent

replacements, not crossovers, could retain their jobs at the end

of a strike—and then only if the Union does not call off its

1} Under the Eighth Circuit's reading of Mackay Radio and Erie

Resistor, if the 100 most junior employees in a workforce of 200 choose not

to strike, and if the employer hires replacements for the 100 strikers, the

workforce at the end of the strike must be reconstituted to consist solely of

the strikers and the newly hired striker replacements. Thus, the employees

who did nor strike lose their jobs as the result of the employer's decision to

replace those who did! This Court cannot have intended Mackay Radio and

Erie Resistor to have such a bizarre result.

12 Crossovers could avoid displacement at the end of the strike, under

the Eighth Circuit's holding, only by quitting their jobs, forfeiting their

semority for all purposes and returning to work as new-hire replacements.

The unlikely prospect of that event highlights the illogic of the holding

below, as well as the extent to which it would impermissibly interfere with

the right of a carrier to operate during a strike and the rights of its employees

to refrain from engaging in concerted activity.

strike before the permanent replacements have completed their

training. In effect, the Eighth Circuit thus gave the Union a

back-to-work agreement that it had not negotiated and could

not win for itself.

This Court should review and reverse the decision below

because (1) it is contrary to the decisions in Mackay Radio and

Erie Resistor; (2) it is in conflict, on the crossover ruling, with

the decisions of the Sixth Circuit in NLRB v. Harrison Ready

Mix Concrete, Inc., 770 F.2d 78 (6th Cir. 1985) and NLRB v.

American Olean Tile Co., No. 86-5308 (6th Cir. August 13,

1987), and of the Seventh Circuit in Giddings & Lewis, Inc. v.

NLRB, 675 F.2d 926 (7th Cir. 1982); and, on the trainee issue,

with the decisions of the Second Circuit in H.F Binch Co. v.

NLRB, 456 F.2d 357 (2d Cir. 1972) and of the Seventh Circuit

in NLRB v. Cutting, Inc., 701 F.2d 659 (7th Cir. 1983); (3) it

misinterprets provisions and decisions under the National La-

bor Relations Act and the Railway Labor Act and erroneously

applies concepts and provisions of one Act to the other,

unsettling decades of firmly established national labor policy;

and (4) it is based on an incredible series of misstatements of

law and fact and thus so far departs from “the accepted and

usual course of judicial proceedings” as to call for the immedi-

ate exercise of this Court’s power of supervision. Sup. Ct. R.

17. 1a).

I. THE EIGHTH CIRCUIT'S DECISION THAT CROSS-

OVER FLIGHT ATTENDANTS MUST BE

DISPLACED BY FULL-TERM STRIKERS WITH

MORE “SENIORITY” IS CONTRARY TO PRINCI-

PLES ESTABLISHED BY THIS COURT.

For fifty years federal labor law, under the National Labor

Relations Act, has struck a delicate balance between the

employee’s right to strike and the employer’s right to continue

to operate during a strike. See NLRB v. Mackay Radio, 304

U.S. 333, 345-46 (1938); NLRB v. Erie Resistor, 373 U.S. 221.

232-34 (1963); Belknap, Inc. v. Hale, 463 U.S. 491, 524-28

(1983) (Brennan, J., dissenting). The Eighth Circuit's unprece-

dented and unsupportable decision misconstrues the NLRA

precedent on which it purports to rely, radically upsetting that

carefully crafted and maintained balance, and then compounds

the error by applying the misstated NLRA law to the Railway

Labor Act.

In Mackay Radio, 304 U.S. at 345-46, this Court announced

the fundamental principle, uniformly followed by the courts

until now, that an employer has

the right to protect and continue his business by supplying

places left vacant by strikers. And he is not bound to

discharge those hired to fill the places of strikers, upon

the election of the latter to resume their employment, in

order to create places for them. . . . [It is] not an unfair

labor practice . . . fo reinstate only so many of the

strikers as there [fare] vacant places to be filled. (Emphasis

added; footnote omitted)

This fundamental decision was not limited to replacement of

strikers by newly hired employees. Its whole import is that

strikers are entitled to be reinstated only to the extent that

there are vacant places to be filled. The choice of incumbent

employees not to join a strike or to refrain from supporting it

for its duration prevents the creation of vacancies in the

positions held by those employees. There is nothing in Mackay

Radio that gives strikers, when the strike is called off, the right

to treat those occupied positions as vacancies. Nor is there

anything in the decision that contemplates that strikers may use

their pre-strike seniority to displace from those non-vacancies

the employees who are occupying the jobs.

In fact, the very replacements at issue in Mackay Radio were

crossovers. They were employees at the time of a nation-wide

strike against the company, who chose not to join the strike

and were transferred to a location where their services were

needed. See 1 N.L.R.B. 201 (1936). This Court's later decision

in Erie Resistor, moreover, makes clear that the term “perma-

nent replacement,” as used in that decision and subsequently, is

not confined to new hires but includes any permanent em-

ployee who worked during the strike. Thus, the Court said:

Under the decision . . . [in Mackay Radio] an employer

may Operate his plant during a strike and at its conclusion

need not discharge those who worked during the strike in

order to make way for returning strikers. 373 U.S. at 232.

And then further describing the Mackay Radio decision, the

Court said: “[T]he employer's interest. must be deemed to

outweigh the damage to concerted activities caused by perma-

nently replacing strikers . . . .” Jd.

The conclusion is inescapable, therefore, that the Court

included in the category of “permanent replacement” all

“those who worked during the strike” as permanent employees

and not just those who were newly hired to fill places left

vacant by strikers." If all the employees of a company went

out on strike when it began and, during the strike, half of the

positions were filled by new-hire permanent replacements and

the other half by early returning strikers, the Court cannot

have intended that somehow half of the positions still remained

to be filled by strikers when the strike is called off. In

construing NLRA § 2(3), which has no parallel in the RLA, the

Court went no further than to say that it “preserves to strikers

their unfilled positions and status as employees during the

pendency of a strike.” 373 U.S. at 233 (emphasis added).

On May 17, 1986, when IFFA offered to return to work “on

behalf of all. . . employees . . . who went on strike and have

not returned to work to date” (Sla, 59a), fewer than 200 places

were vacant, the remainder having been filled by new-hire

permanent replacements and crossovers. Ignoring decades of

authority holding that economic strikers are entitled to rein-

Statement only “[i]f and when” vacancies are available, see.

e.g., NLRB v. Fleetwood Trailer Co., 389 U.S. 375. 38]

13° See also the Third Circuit's decision in Erie Resistor, 303 F.2d at

360, where the court described the “replacements” as “includfing] hew

employees, employees on layoff status and returning strikers.”

(1967),'* the court below announced the astonishing new rule

that vacancies must be created for economic strikers by dis-

placing employees who exercised their right either not to strike

or to return to work during the strike at a time when vacancies

existed.

The Eighth Circuit’s fundamental misconception of the law

is demonstrated by its repeated statement that TWA had

strike started. They did not need to be “replacements” for

others; they simply continued to work for TWA, thereby

preventing vacancies in the jobs they occupied. No principle of

law, logic or labor policy can be found to justify the displace-

ment from their jobs of permanent employees who work

during a strike. Mackay Radio clearly gives the employer the

right to fill places left vacant by strikers; that principle cannot

be distorted into a rule of law that strikers may claim jobs not

left vacant but, rather, filled by non-strikers.

ll. THE DECISION BELOW IS IN CONFLICT, ON THE

CROSSOVER ISSUE, WITH THE SIXTH AND SEV-

ENTH CIRCUITS AND, ON THE TRAINEE ISSUE,

WITH THE SECOND AND SEVENTH CIRCUITS.

A. Crossovers

In NLRB v. Harrison Ready Mix Concrete, Inc., 770 F.2d 78

(6th Cir. 1985), in contrast to the decision of the court below,

the Sixth Circuit held that an employer could not be compelled

to permit strikers to exercise their pre-strike seniority to obtain

full-time (rather than part-time) jobs, in preference to replace-

14 See aiso Vulean Hart Corp. +. NURB, 718 F.2d 269, 274 (8th Cir.

1983) «where the court stated that strikers “are entitled to reinstatement as

vacancies arise, although they may not displace permanent replacements —

making no distinction between the 7 crossovers and the 23 new-hire replace-

ments before it); Lodges 743 and 1746, International Ass'n of Machinists ‘.

United Aircraft Corp., $34 F.2d 422, 442 (2d Cir. 1975), cert. denied, 429

U.S. 825 (1976) (“No case insofar as we are aware, has required an employer

to lay off its active employees so as to make room for strikers.”).

ments and earlier returning strikers. The Sixth Circuit thus

clearly held that strikers could not displace crossovers.

In its very recent decision, NLRB v. American Olean Tile

Co., No. 86-5308 (6th Cir. August 13, 1987) (reprinted in 160

Daily Lab. Rep. (BNA) D-1), the Sixth Circuit again con-

firmed that crossovers who worked during a strike need not

yield their jobs at the end of the strike to more senior strikers.

The court went even further and said that the employer could

use a chronological list of employees who offered to return

during the strike when there were no vacancies, to fill vacancies

that arose after the strike. (On the latter point there was a

dissent, but that question is not in this case.) The Sixth

Circuit’s approval of the reinstatement of strikers in the order

in which they offered to return to work, reaffirms the conflict

between that circuit and the Eighth Circuit which was created

by the decision below. The novelty of the Eighth Circuit's

ruling, moreover, is established by the reference of the Sixth

Circuit to the concession of union counsel there that “use of

the chronological list was lawful during the strike.” 160 Daily

Lab. Rep. (BNA) at D-3.

The court below said that “Giddings [@ Lewis, Inc. v.

NLRB, 675 F.2d 926 (7th Cir. 1982)} in no way casts doubt on

the rule that cross-overs returning to their old positions are not

permanent replacements.” (9a)'° Giddings, however, does not

address the question whether crossovers are permanent re-

placements; it holds that reinstated strikers (/.e., Crossovers) as

well as permanent replacements, may be recalled in preference

to unreinstated strikers with greater seniority if those cross-

overs are furloughed before the more senior strikers have been

15 If that “rule” was announced by International Ass'n of Machinists

v. JL. Clark Co., 471 F.2d 694 (7th Cir. 1972), it is—as the dissent points out

(471 F.2d at 700)—contrary to the use of the term “permanent replacement”

in Mackay Radio and Erie Resistor to include all “those who worked during

the strike,” crossovers as well as new hires. In JL. Clark, moreover, a strike

settlement agreement required the employer “to reinstate stniking employees

on a seniority basis.” 471 F.2d at 697. Finally, if the question here is whether

the crossovers occupied their own jobs or those of the strikers, the Eighth

Circuit should have remanded for that factual determination, as the majority

did in J.L. Clark.

reinstated. If the so called “rule” that the court below an-

nounces were correct, the crossovers in Giddings could not

have remained in their jobs long enough to be furloughed

before the more senior strikers were reinstated. The Eighth

Circuit’s rule would have required the displacement of cross-

overs by the more senior strikers the moment the strikers

requested reinstatement.

The unexpressed but necessarily underlying premise of the

court below is that, following an economic strike, employees

have a right to exercise the seniority they had under the old

contract for limited, specific purposes (which did not include

return from a strike (22a)) to claim the jobs of employees who

chose not to strike. Absent a back-to-work agreement provid-

ing therefor, there simply is no such right. It is, moreover, a

“settled principle that an economic striker has no statutory

right to be recalled by seniority,” even when there are vacan-

cies. Bingham Willamette, 282 N.L.R.B. No. 165, slip op. at 6

n.5 (1987)."°

B. Flight Attendants in Training

Apparently recognizing the invalidity of the district court’s

rationale for holding that the flight attendants in training when

the strike ended were not “permanent replacements,” the court

below expressly declined to adopt the district court s Sweeny

rule” (14a) and made no mention whatsoever of its “‘training

school exception’ to the Mackay Radio rule” (40a). Instead,

the Eighth Circuit affirmed the district court on the novel

ground that the flight attendants in training were not employ-

ees” within the meaning of the Railway Labor Act. (11-12a)

Alternatively, it purported to apply “the rationale of NLRA

decisions” and a “balancing test” that it discerned in Mackay

Radio to conclude that “unreinstated strikers are entitled to

16 See also, e.g., NLRB v. Wells Fargo Armored Service Corp., $97

£.2d 7, 10 (ist Cir. 1979); Indiana Desk Co., 276 N.L.R.B. 1429, 1447 (1985);

Kennedy & Cohen of Georgia, Inc., 218 N.L.R.B. 1175, 1175-76 (1975); Bio-

Science Laboratories, 209 N.L.R.B. 796 (1974).

those positions now held by the . . . trainees” (14a), because

= roe were se permanent replacements.

ccording to t Eighth Circuit, it is “irrelevant”

the flight attendants in training had actually hes taee

TWA as permanent employees. Nor is it of any import that

they were being paid at flight attendant rates of pay, were

covered by all employee benefit plans, were accruing flight

attendant seniority, were participating in required training at

TWA's facility, and were subject to TWA’s supervision and

direction.” Even given all that, the court below said, employ-

ees In training are not, “Sy any stretch of the imagination”

( 12a), performing services for TWA and, therefore, were not

on within the meaning of the Act.

at ing is contrary to the rulings of the National

Mediation Board—the agency with the primary jurisdiction to

administer and interpret the RLA—that trainees are “employ-

ees under the RLA when, like the flight attendant trainees in

this case, they receive the same pay and fringe benefits as other

employees in the craft or class, even if they are still in ground

! 7 » ‘ ‘ ‘

The court relied on the inapposite decision of the Seventh Circuit in

= Line Pilots Ass ‘n \. United Air Lines, 802 F.2d 886 (7th Cir. 1986), cert

= betel .. Ct. 1605 (1987), as “dispositive”, saying that the Seventh

ircuit rejected the ravenale upon which TWA relies” (10-1 la)— while

acknowledging that “the circumstances surrounding the pilot trainees in

ALPA differ from the situation here” (12a), principally in that those pilot

were not hired. Since the Seventh Circuit's decision was based pay .

Precisely opposite to the facts of this case, that court obviousl +"

said to have rejected TWA’s rationale. pacha

The court below also ignored that the issue in AL PA v. United, supra, was

mot whether the “Group of 500” were strike replacements who could be

retained in the employ of the carrier when the strike ended but whether the

had ev... become “employees” entitled to protection wader Section 2 Sok

of the RLA (45 U.S.C. § 152, Fourth). As demonstrated at pp 20-21 inf

: replacement who has been offered and accepted permanent re nt

sy 4 — need not be an “employee” before the strike ends in order to

a Strike replacement.” See also ALPA vy. United Air Lines, 616 F. Supp.

, 850-51 (N.D. Il. 1985). amending 614 F. Supp. 1020 (N.D. Il.), wher

Judge Bua—emphasizing that the time of commitment of permanence “

replacements is controlling — held that another group of $39 pilots who

were hired, were permanent replacements even though fewer than half of

them had even begun training before the end of the strike.

school training at the time in question. Scheduled Skyways, 10

N.M.B. 488 (1983).'° Thus, concluding that employees in

ground school training, even if employed by the carrier in

every common sense and common law meaning of the word,

“cannot be considered employees within the meaning of the

RLA” (12a), the Eighth Circuit eliminated, with a few conclu-

sory paragraphs, the organizational and representational rights

of an untold number of employees who have heretofore en-

joyed the protections of the Act.

Through its selective use of NLRA authority, the Eighth

Circuit also ignored substantial and long standing precedent

holding that it is immaterial whether a permanent replacement

has completed a required training period before strikers re-

18 Compare Air Micronesia, 10 N.M.B. 11 (1982) (holding that trainees

who had never been on the payroll of the carrier and had not been offered

employment almost two years after completing training were not employees

under the RLA).

19 As supportive of its conclusion, the court below blindly stated that

“if the trainees were to be considered as employees, they would need to join

the Union and pay dues” (12a)—although their training period was only

seventeen days and the Act plainly prohibits the compulsory payment of

union dues any earlier than “sixty days following the beginning of . .

employment.” (45 U.S.C. § 152, Eleventh(a)) Contrary to its implication,

moreover, the Eighth Circuit did not address the question whether “trainees,”

as opposed to other permanent replacements, were required to pay dues, in

its decision in the TWA Action. (12a)

Equally spurious is the Eighth Circuit's speculation—without regard to the

facts of this case—that “accord{ing] the trainees employee status. . . would

allow an employer to amass a trainee pool capable of replacing the entire

striking workforce at some future date after the strike has ended.” (13a) It is

undisputed in this case (i) that TWA ceased recruiting strike replacements on

April 25, 1986—over three weeks before IFFA decided to end its strike; (ii)

that TWA was required to hire and train the flight attendants in question

beginning in late April and early May—while IFFA was still on strike—in

order to have a full complement of flight attendants by peak season in June;

and (iii) that there were nearly 200 vacancies in the flight attendant

workforce at the end of the strike—to which full-term strikers were rein-

stated. Clearly, there is no basis in this record for any inference—especially

on a motion for summary judgment—that TWA was “amass[ing] a trainee

pool” (13a) in order to defeat the right of strikers to reinstatement.

quest reinstatement.” In any event, insofar as it purport

rely on NLRA precedent and not its sirained definition of

“employee” under the RLA, the decision below conflicts with

the decisions of the Second and Seventh Circuits in H.F. Binch

Co. v. NLRB, 456 F.2d 357 (2d Cir. 1972) and NLRB vy.

Cutting, Inc., 701 F.2d 659 (7th Cir. 1983).

The Second and the Seventh Circuits have held that perma-

nent strike replacements are hired when an offer of permanent

employment has been made and accepted and, once hired, are

not subject to displacement by returning strikers even if the

replacements have not actually become employed before the

strikers request reinstatement.”' As Judge Friendly wrote for

the Second Circuit in H.F. Binch Co.. Structuring a test for

determining when a permanent replacement has been hired,

[T]he . . . question of just what circumstances consti-

tuted a hiring to fill the place of strikers . . . Must be

answered in a practical frame. . . . On the one hand, a

mere offer, unaccepted when the striker seeks reinstate-

ment, is insufficient to qualify; on the other, actual arrival

on the job should not be required if an understanding has

been reached that this will occur at a reasonably early date

. . » « [A] replacement has been obtained if, but only if,

both the employer and the replacernent understand that

the latter has accepted the vacant position before the

See, e.g... CH. Guenther & Son, Inc., 174 N.L.R.B.

(1969), enforced, 427 F.2d 983 (Sth Cir.), cert. denied, 400 ao on aan

Hot Shoppes, Inc., 146 N.L.R.B. 802, 804 (1964); Bowman Transportation,

Inc.. 142 N.L.R.B. 1093. 1098 (1963); Anderson, Clayton & Co 120

N.L.R.B. 1208, 1214 (1958): The Texas Co., 93 N.L.R.B. 1358, 1394 (1981)

review granted on other grounds, 198 F.2d $40 (%h Cir. 1952): see oho

Belknap, Inc. v. Hale, 463 US. 491, 504 1.8 (1983).

21 See also Home Insulation Service, 255 N.L.R.B. 311, 312 n.9

enforced without opinion, 665 F.2d 352 (Sth Cir. 1981) (“striker replacement

applicants - . . Who have not yet reported for work _ . . obtain the status of

striker replacements upon their acceptance of offers of permanent employ -

ment”); L. E. M., Inc., 198 N.L.R.B. 694, 695 (1972) (“if an employer

makes 4 commitment to an applicant for a striker’s job, . . . that hire {is} a

legitimate replacement even though the striker requests reinstatement before

the replacement actually begins work”) (footnote omitted).

Pr ..

replaced striker offered to return to work. . . . 456 F.2d

at 361-62 (emphasis added; citations omitted).

Similarly, in NLRB v. Cutting, Inc., supra, the Seventh

Circuit held that strike replacements were “hired” before

strikers requested reinstatement because the replacements had

been offered and accepted permanent employment before the

strike ended. The court so held even though the replacements

did not actually become employed until two days following the

strikers’ offer to return to work and were required to pass a

physical examination before they became employed, which the

employer was unable to schedule before the strike ended. 701

F.2d at 661-62, 669.

In contrast, the Eighth Circuit has now held that replace-

ments who had not only accepted offers of permanent employ-

ment, but were actually employed by TWA—some for as tong

as two weeks, with three more days to go to complete

training—when IFFA ended its strike, were not permanent

replacements and, therefore, that unreinstated strikers are

entitled to their jobs. (10-14a) At no point, other than by a

distortion of this Court’s decision in Mackay Radio (see pp.

23-24, infra), did the court below suggest any basis for afford-

ing /ess protection against displacement to replacements (like

the flight attendants in question here) who accept permanent

jobs and begin their employment before the strikers seck

reinstatement, than to those who are promised jobs but have

not become employed by the end of the strike.

Neither the Eighth Circuit’s result-oriented definition of

“employee” (11-13a) nor its so-called “balancing test” (13-14a)

justifies the displacement of some 400 permanent replacements

who were offered, accepted and entered employment before

the Union decided to end its strike. “Protection of the right to

strike [simply] does not require going so far.” H.F. Binch Co.,

456 F.2d at 362.

Ill. THE DECISION BELOW DISTORTS MACKAY

RADIO AND ERIE RESISTOR AND APPLIES THAT

DISTORTION TO THE RAILWAY LABOR ACT; IT

ALSO IGNORES CONTRARY NATIONAL LABOR

RELATIONS BOARD PRECEDENT.

The decision below is a total distortion of this Court's

determination in Mackay Radio of the limitations on an

economic striker’s right to reinstatement at the end of a strike

This Court said, plainly and unmistakably, in Mackay Radio:

The assurance by [the employer] to those who accepted

employment during the strike that if they so desired their

places might be permanent was not an unfair labor

practice nor was it such to reinstate only so many of the

strikers as there were vacant places to be filled. 304 U.S

at 346. _,

The Court, in other words, said two things: (i) that strikers are

entitled to be reinstated only to vacant places; and (ii) that

places occupied by those who accepted employment with assur-

ances that their positions were permanent, are not vacancies. A

fortiori, the Court did not need to say that places occupied by

persons who were permanent employees at the time the strike

began, either because they never left those places or because

they returned to them while the strike was in progress, were not

vacancies.

, The court below completely ignores the explicit requirement

in Mackay Radio that a vacancy must exist before there is an

right to reinstatement.” It ignores, too, that Mackay Radio M

expressly based upon Section 2(3) in the NLRA, which pro-

vides:

The term “employee” shall include. _ . any individual

w hose work has ceased as a consequence of, or in connec-

tion with, any current labor dispute. . . and who has not

.”*, -

= : The majority in International Ass'n of Machinists v. J. 1. Clark Co

471 F.2d 694 (7th Cir 1972). apparently made the same mistake. as the

dissent in that Case By Fudge Pell pointed out

obtained any other regular and substantially equivalent

employment. . . . 304 U.S. at 345.

Under Mackay Radio, even a striker explicitly defined as an

employee under the NLRA has no right to reinstatement in the

absence of a vacancy. The court below, however, held that a

striker under the Railway Labor Act, who is not defined in that

Act as an employee, has greater rights, i.e., the right to remove

an employee from his job supposedly because they are both

union members. Apart from the fact that the Railway Labor

Act confers no such right, the decision below contradictorily

acknowledges that the “cross-overs have apparently ceased

their union memberships except for payment of dues.” (8a)

In administering the NLRA, moreover, the National Labor

Relations Board has consistently interpreted that Act so as to

raise no question about the right of crossovers to remain in

their jobs at the conclusion of a strike even though more senior

strikers remain unreinstated.” In Randall, Division of Textron,

Inc. v. NLRB, 687 F.2d 1240 (8th Cir. 1982), cert. denied, 461

U.S. 914 (1983), for example, neither the Board nor the Eighth

Circuit itself raised any question about the right of crossovers

to remain in their jobs. In cases like George Banta Co. v.

NLRB, 686 F.2d 10 (D.C. Cir. 1982), cert. denied, 460 U.S.

1082 (1983), the Board had no problem with the right of

crossovers to retain their jobs; what it held to be objectionable

was the grant of benefits to crossovers that would persist after

more senior strikers had returned to their jobs. Just so, this

Court in Erie Resistor held objectionable the award of “super-

seniority” to crossovers and permanent replacements, to be

exercised in the future against reinstated strikers, but did not

deny the right of the crossovers to keep their jobs without

super-seniority.

23s As explained in a recent publication by the Practising Law Institute:

“Junior employees who worked through the strike or returned early may

continue their employment even if it results in senior economic strikers

remaining unreinstated at the end of the strike.” M. Hutcheson, ef a/.,

Employer's Guide to Strike Planning and Prevention 346 (1985).

Equally novel and unprecedented is the Eighth Circuit’s use

of Mackay Radio as an alternative route to the result it reached

with respect to the flight attendants in training when the strike

ended. The court below misread Mackay Radio as authorizing

the courts to use a “balancing test” (13a) to determine whether

permanent replacements may retain their jobs at the end of the

strike—when Mackay Radio actually announced a clear rule

that permanent replacements need not be displaced to make

room for returning economic strikers. 304 U.S. at 345-46. In

the fifty years since then, no other court has found in Mackay

Radio authority to apply the so-called “balancing test” that the

court below purported to find there; nor has the National

Labor Relations Board.

The court below also concluded that the honoring of assur-

ances of permanence to strike replacements does not constitute

a “business justification” for failing to reinstate strikers

(14a)—when this Court has held squarely to the contrary. See,

e.g., Belknap, Inc. v. Hale, 463 U.S. 491, 504 n.8 (1983) (“The

refusal to fire permanent replacements because of commit-

ments made to them in the course of an economic strike

satisfies the requirement . . . that the employer have a ‘legiti-

mate and substantial justification’ for his refusal to reinstate

strikers.”) (citation omitted); see also NLRB v. Brown, 380

U.S. 278, 292 n.6 (1965) (It is the employer’s “prerogative to

hire permanent replacements for strikers.”); Harding Glass

Industries, Inc. v. NLRB, 672 F.2d 1330, 1338 (10th Cir. 1982)

(“If permanent replacements have been hired before strikers

make an unconditional offer to return to work, the employer

has a legitimate and substantial justification for refusing to

reinstate the strikers.”); Giddings & Lewis, Inc. v. NLRB, 675

F.2d 926, 929 (7th Cir. 1982) (“Mackay eliminates the need for

any case-by-case application of the [business need] test to

justify the hiring of permanent replacement workers.”).

IV. THE EXTRAORDINARY RELIANCE OF THE

COURT BELOW ON MISSTATEMENTS OF LAW

AND FACT IS SUCH AN EXTREME DEPARTURE

FROM ACCEPTED JUDICIAL PROCEEDINGS AS

TO WARRANT SUMMARY PEVERSAL BY THIS

COURT.

The opinion below on the questions here presented is so

dependent upon incontestably erroneous statements of law and

fact that if they were deleted from the opinion nothing would

remain to support its results. Because those results, moreover,

are so contrary to the law established by this Court, other

courts of appeals, and the cognizant administrative agencies,

the decision below on the issues raised in this petition should

be summarily reversed, in accordance with Rule 23.1 of this

Court. .

1. In perhaps the most incomprehensible and specious as-

pect of its rationale, the Eighth Circuit bases its decision on the

union security clauses that it has previously held continued in

effect. Those clauses, which simply required payment of union

dues as a condition of continued employment, cannot be

treated as a substitute for a back-to-work agreement or as the

equivalent of a union rule establishing the right, as among the

covered employees, to exercise seniority to displace less senior

employees from the jobs they hold. . |

Seniority, moreover, is not a creature of internal union rules,

but of contract between employer and union. The 1981-84

TWA-IFFA contract made no provision for the use of seniority

in the way in which the court below directed. The emphasis by

the Eighth Circuit on the concept of “union members” “work-

ing together under the union security clause” (7-9a) is simply

rhetoric and has no foundation in fact, since the union security

clause has neither the purpose nor the effect of governing

relationships among employees, and it does not require them to

be union members.”

24 The Eighth Circuit says that “[ujnder the umon security clause ; ae

jof the 1981-84 Agreement] all flight attendants working tor TWA were

required to be union members. . . .” (4a) Article 24(A), however, specifically

(footnote continued)

2. The Eighth Circuit cites RLA Section 2, Eleventh as

“authorizing ‘closed shop’ agreements” (7a) and, as its “most

important[ ]” reason for concluding that the crossovers are

subject to displacement, relies upon a so-called “closed shop

agreement” between TWA and the Union (7a). It is clear

beyond question, however, that such agreements are unlawful

under both the RLA and the NLRA® and, in any event, that

no such provision was contained in the TWA-IFFA agreement.

3. The court below makes the truly remarkable assertion

that “new hires cannot be the subject of discrimination based

upon union loyalty and activity” (7a n.4)—thereby removing

from the protection of RLA Section 2, Third and Fourth (and

apparently NLRA Section 8(a)(3) as well) all newly hired

employees.

4. The couri below says that under this Court’s decision in

Pattern Makers’ League of North America v. NLRB, 473 U.S.

95 (1985), “[U]nion members may resign from all obligations

except that of paying dues.. . .” (8a) That case, however, does

not deal with resignation by union members from obligations,

but from membership in the union.

5. Persisting in confusing non-members with members, the

court proclaims the non sequitur that “if the Union cannot

penalize its members for working during a strike, neither may

TWA reward those members with permanent replacement sta-

tus.” (8a) A union may fine its “members.” And it is clear that

even if the Pattern Makers’ case does not apply to the RLA—

and the court below was willing to assume that it did—the

record does not establish that there was anything in this

Union’s constitution that prohibits resignation during a strike;

therefore, the question whether this Union may fine the cross-

provided that “[fjor the purpose of this Article, ‘membership in good

standing in the Union’ shall consist of the payment by the employee. . . of

dues for each calendar month and initiation fees . . . which are uniformly

required of members. . . .” (63a)

See C. Morris, The Developing Labor Law 1362 (1983); R. Gorman,

Basic Text on Labor Law 641-42 (1976).

overs who resigned their membership” before they went back

to work does not arise. TWA, moreover, did not “reward” the

crossovers with permanent replacement status; it simply al-

lowed them to remain in their jobs.

6. The court said that “the cross-overs cannot be granted

permanent replacement status because such action discrimi-

nates on the basis of union activity.” (8a) Nothing that this

Court said in Erie Resistor, however, or in any other decision,

even suggests that it is “discrimination” on the basis of “union

activity” for an employer to decline, at the conclusion of a

strike, to displace those who worked during the strike in order

to create places for returning strikers.””

7. While the court below recognizes that what this Court

disapproved in Erie Resistor was “an award of super-seniority

to permanent replacements and cross-overs” and that “TWA

has not awarded super-seniority to the employees who worked

during the strike” (8a), it nonetheless says that “several of the

concerns voiced by the Court in Erie Resistor are applicable to

the status of the cross-overs here.” (8a) Those concerns were

that super-seniority (in the event of future furlough) “offered

an inducement to abandon the strike” and “created a long-

term division among the work force.” (8a) The court below

purported to find the same concerns present here. It said that

treating the crossovers as permanent replacements “differenti-

ates employees on the basis of their union activity, induces

employees to abandon the strike and is likely to create long

term conflict and division within the work force of those

working together under the union security clause.” (9a) But

TWA did not “differentiate” among employees; the crossovers

exercised their right to continue in, or resume their jobs. TWA

26 The Eighth Circuit says that new hires “were not union members

when they began work during the strike.” (7a n.4) Neither were the cross-

overs, since the court itself savs that “cross-overs have apparently ceased

their union memberships except for payment of dues.” (8a)

27 In another egregious distortion of the law, the court below asserts

that to allow crossovers to remain in their jobs when the strike ended is akin

to awarding them “super-seniority,” a proposition that is on its face contrary

to the meaning of that term as used in Erie Resistor. See tootnote 10, supra.

. 28

did not “induce” them to abandon the strike; they had the free

choice of whether or not to join the strike or continue support-

ing it. And, as to long term conflict and division within the

work force, it is ludicrous for the court below to suggest that

nothing but harmony will prevail between the crossovers and

the strikers who take their jobs or between the strikers and the

new hires who were permanent replacements for the strikers.

8. Contrary to the statement of the court below, George

Banta Co. v. NLRB, 686 F.2d 10 (D.C. Cir. 1982), cert. denied,

460 U.S. 1082 (1983), did not say that the “nature of the

benefit conferred on cross-overs was irrelevant.” (9a) That case

disapproved of benefits and discriminatory treatment that

would persist after all the strikers had returned to work. In

that case, moreover, the employer had agreed, in a settlement

agreement, to take back all the strikers as though the strike had

been an unfair labor practice strike. The George Banta case

followed Erie Resistor in holding that non-strikers may not be

afforded preferential treatment that will differentiate them

from strikers after the strikers have returned to work.

9. Finally, one of the more arcane and disingenuous pro-

nouncements of the court below is its statement that the

Seventh Circuit in Air Line Pilots Ass'n v. United Air Lines,

802 F.2d 886, 898 (7th Cir. 1986), cert. denied, 107 S. Ct. 1605

(1987), has “recently approved reliance on [/nternational Ass’n

of Machinists v. J.L. Clark Co., 471 F.2d 694 (7th Cir. 1972)].”

(9a) The Seventh Circuit, at the page indicated, does not even

cite to the J.L. Clark case. It does say that non-strikers cannot

be awarded positions which they did not occupy during the

strike, in preference to more senior strikers. The district court

in the United case had cited J.L. Clark in support of that

proposition, but there is no claim here that the crossovers did

not occupy flight attendant positions during the strike. Con-

trary to the implication of the court below, the Seventh Circuit

did not approve the statement of J.L. Clark that a crossover

had to fill a position other than his own and, as noted above,

the Seventh Circuit in Giddings, supra, plainly held that

crossovers may retain their jobs at the end of a strike as against

the claims of unreinstated senior strikers.

~ ae

CONCLUSION

Lacking any rational or principled basis of support, the

decision below is clearly contrary to this Court’s decisions in

Mackay Radio and Erie Resistor and to existing precedent and

practice of the courts and administrative agencies concerned

with the interpretation of the National Labor Relations Act

and the Railway Labor Act. If allowed to stand, it will have the

effect of massively shifting, for no good reason, the carefully

weighted and long established balance of economic and negoti-

ating power between employers and unions—before, during

and after a strike—under both labor Acts. It also raises the

spectre of potential imposition of retroactive liability for many

millions of dollars in back pay simply as a result of the

employer's exercise of the heretofore accepted right to leave

permanent employees in their jobs when a union calls off an

economic strike.

The decision, moreover, purports to be based on the Eighth

Circuit’s prior ruling that a union security clause survives the

term of a Railway Labor Act agreement, although that clause

cannot possibly be read as a back-to-work agreement or as

conferring post-strike seniority rights. That case, therefore, has

no conceivable applicability, whether it was correctly decided

or not.

In sum, the decision below demonstrates so compelling a

need for the exercise of this Court’s power of supervision that

it should be summarily reversed, under Sup. Ct. R. 23.1, on

the issues presented by this petition. Each day that the decision

is allowed to stand, its strange logic and egregious misstate-

ments of the law will work predictable mischief on national

labor policy by unsettling principles established by this Court

decades ago, injecting new uncertainties into the collective

bargaining process and spawning disputes and litigation over

questions long viewed as settled. At the very least, this petition

should be granted, in order to address the Eighth Circuit’s

departure from long accepted judicial and administrative appli-

cation of the National Labor Relations Act and the Railway

Labor Act, purportedly based primarily on its earlier decision

which is itself pending review in this Court in No. 86-1650.

Respectfully submitted,

CAROLE O’BLENES MURRAY GARTNER

GREGORY ARENSON PAUL E. DONNELLY

Of Counsel MARK A. BUCKSTEIN

MICHAEL A. KATZ

Attorneys for Petitioner

October 1, 1987

APPENDICES

APPENDIX A

\ Opinion and Judgment of the

U.S. Court of Appeals for the Eighth Circuit

UNITED STATES COURT OF APPEALS

For THE EIGHTH CIRCUIT

—_———_

> | No. 86-2197

| THE INDEPENDENT FEDERATION OF FLIGHT ATTENDANTS,

an Unincorporated Labor Organization,

o~,

TRANS WORLD AIRLINES, INC.,

K. C. INTERNATIONAL AIRPORT, K. C.

APPEALS FROM THE UNITED STATES District COURT

FOR THE WESTERN DISTRICT OF MISSOURI

Submitted: December 12, 1986

Filed: May 26, 1987

Before Lay, Chief Judge, BRIGHT, Senior Circuit Judge,

and WOLLMAN, Circuit Judge.

BRIGHT, Senior Circuit Judge.

This appeal by Trans World Airlines, Inc. (TWA) and cross-

appeal by the Independent Federation of Flight Attendants

(the Union) arise from the district court’s judgment determin-

ing the relative rights of strikers, new hires, cross-overs and

'rainees to continued employment and reinstatement following

the 1986 strike by TWA flight attendants. The district court

granted preference in employment to newly hired strike re-

placements and union members who crossed the picket lines,

thereby preventing reinstatement of full-term strikers with

greater seniority to those positions. For the reasons discussed

below, we affirm in part and reverse in part. In essence, we

grant preference in current employment only to the new hires.

1. BACKGROUND

approximately 1280 cross-over flight attendants (cross-overs)

who were credited with their prior length of service plus

whatever time they accrued by working during the strike.' Also

Cross-overs are those flight attendants who worked for TWA and

were Lmion members prior to the strike. Some never went out on stroke and

others returned to work at various times during the strike. They kept their

during the strike, TWA continued to hire new flight attendants

to meet expected demand. TWA advised these trainees that

they were TWA employees as of the first day of training.

Approximately 463 trainees had not completed their training

when the strike ended.

At 10:00 p.m. on May 17, 1986, the Union made an offer to

return to work. Notwithstanding this offer, TWA retained its

new hires and cross-overs as employees without replacement by

any of those attendants who remained on strike for its dura-

tion. TWA later recalled striking flight attendants as the need

then arose in order of seniority. In addition, TWA placed the

463 trainees into permanent positions when they completed

their training, which was after the strike had ended. These

trainees received preference in job placement over those flight

attendants who had not returned to work for the duration ot

the strike.

The Union thereupon instituted this action in the district

court claiming that TWA discriminatorily and unlawfully de-

nied reinstatement to more than 2000 striking flight attendants

after they had ended the strike and had offered to return to

work.

In a previous appeal to this court arising out of this litiga-

tion, TWA challenged the continued viability of those portions

of the collective bargaining agreement that were not subject to

bargaining and intended change. 7rans World Airlines v. Inde-

pendent Fed’n of Flight Attendants, 809 F.2d 483 (8th Cir.),

petition for cert. filed, Apr. 14, 1987 (TWA 1). Particularly at

issue in the prior case was the duration of the agreement as to

seniority as accrued prior to March 7, and also accrued additional seniority

throughout the strike. At the end of the strike, they maintained their

positions and TWA refused to displace them with returning tull-term strikers

with greater seniority.

2 Flight attendants are not qualified to service flights until thes

complete a training course and an operational experience flight. Prior

March 7, trainees attended the program on a tuition-paying basis and agre

not offered employment until after completion of the course. After the strike

began, TWA placed the trainees on its payroll as of the tirst day of ther

training.

the union security and dues check-off provisions. We held in

TWA | that the entire bargaining agreement did not expire just

because the parties reached an impasse in their bargaining

about certain items of compensation, expenses and bidding

procedures. /d. at 490. This court also decided that the union

security and dues check-off provisions of the bargaining agree-

ment remained in effect because these provisions had not been

reopened in the prior bargaining sessions. /d. at 492. Under the

union security clause that had not been reopened, all flight

attendants working for TWA were required to be union mem-

bers and pay union dues in order to continue their employment

with TWA.

These appeals challenge the district court’s rulings on cross-

motions by the Union and TWA for partial summary judg-

ment. The district court held that the flight attendants in

training when the strike ended were not permanent strike

replacements and must yield their jobs to strikers who returned

to work. The court decided that a permanent replacement must

actually perform work within a reasonable period of time and

that two days was a reasonable period. Because none of the

463 trainees had completed their final training flights within

two days after the strike, they did not perform services within a

reasonable period of time and could not be considered perma-

nent replacements. TWA appeals this holding in No. 86-2197.

The district court also held that the cross-overs and new

hires were entitled to retain their jobs as against the claims of

strikers. The Union appeals this holding in No. 86-2319.

We affirm the determination that those flight attendants

holding a trainee status at the end of the strike may not be

retained over striking employees. We also affirm the district

court’s ruling that new hires may retain their jobs as against

the claims of strikers. We reverse, however, as to cross-overs.

They may not retain their positions as against strikers with

greater seniority.

Il. DISCUSSION

Employees who are not working because of a labor dispute

remain “employees” of the employer unless they obtain other

work. NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 378

(1967); NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333, 345

(1938). When the labor dispute is economic in nature,’ how-

ever, the employer may hire permanent replacements for

strikers in order to continue business operations. Mackay

Radio, 304 U.S. at 345-46. Once an employer hires permanent

replacements, economic strikers are entitled to reinstatement

only as vacancies occur. The employer is not required to

discharge permanent replacements in order to rehire striking

employees. /d.

A. New Hires

The district court held that the 1220 “new hires” who started

work on and after March 7, 1986 were employed as permanent

replacements and not as additions to the workforce. The

district court reached its conclusion by considering the circum-

stances in which they were hired. The court noted that al-

though TWA anticipated a need for new attendants regardless

of a strike, once the strike began, TWA made clear that it was

hiring new flight attendants to replace strikers. The new hires

crossed picket lines to receive formal offers of employment

and TWA had earlier informed them that if they were hired

after a strike, they would be considered permanent replace-

ments for striking employees. The court further held that the

replacements’ subjective understanding of their employment

status was irrelevant, that is, the new hires did not need to

know and understand their permanent replacement status. ;

The Union argues that returning strikers should, have prefer-

ence over new hires because the new hires were merely addi-

tions to the workforce. It contends that TWA actively recruited

new attendants prior to the strike, informing them that they

would be hired whether or not a strike occurred. According to

3 An economic strike protects wages, hours, or terms and conditions

of employment. An unfair labor practice strike protests an oneyer

commission of unfair labor practices. George Banta Co. v. NLRB, 686 F.2d

10, 14 n.5 (D.C. Cir. 1982). For purposes of this lawsuit, the district court

assumed, without deciding, that this strike was economic in nature. The

question of whether the strike was economic or caused by untair seers

practices is the subject of separate litigation, now pending in the district

court.

the Union, the new hires must be considered additions to the

workforce, and not strike repiacements. The Union also argues

that no mutual understanding existed between the new hires

and TWA that the new hires were permanent replacements for

the strikers. Without a mutual understanding, the Union con-

tends that the new hires cannot legally be deemed permanent

replacements.

Although TWA’s statements to new hires may have been

ambiguous prior to the strike, the undisputed evidence clearly

shows that once the strike began, TWA employed the new hires

as permanent replacements for the strikers. These applicants

were informed prior to the strike that they would be hired as

strike replacements. These applicants crossed picket lines, and

TWA advised them as to their_role as strike replacements once

they began to work. Thus, we conclude that the district court

correctly determined that the 1220 new hires were employed as

permanent replacements and thus were not subject to displace-

ment by returning strikers.

We reject the Union’s contention that a mutual understand-

ing must exist between the new employees and TWA that the

new hires are in fact permanent replacements. The Union

argues that the new hires must have subjectively understood

that they were permanent replacements in order to create the

necessary mutuality of understanding.

The law, however, does not require mutuality. NLRB y.

Murray Products, 584 F.2d 934 (9th Cir. 1978), upon which the

Union relies, does not require mutual understanding. Rather,

Murray Products holds that an employer's unilateral and

undisclosed decision to designate new employees as permanent

replacements is inadequate to actually accord them permanent

Status. /d. at 939. In the present case, TWA clearly communi-

cated its decision to offer permanent employment to the new

hires. Accordingly, the new hires are permanent replacements

and striking employees may not displace them.

B. Cross-overs

The district court held that the approximately 1280 striking

employees who “crossed over” and went back to work during

the strike were also permanent replacements and not subject to

displacement by full-term strikers with greater seniority.

The district court relied upon Randall, Div. of Textron, Inc.

v. NLRB, 687 F.2d 1240 (8th Cir. 1982), cert. denied, 461 U.S.

914 (1983), in concluding that TWA could legitimately offer

cross-overs permanent replacement status. The district court

noted that Randall and NLRB vy. Erie Resistor Corp., 373 U.S.

221 (1963), are broadly protective of employees who work

during a strike and that the offer of permanency tO cross-overs

did not discriminate on the basis of union activity.

Upon examination of the applicable law, however, we cannot

agree with the district court’s assessment. Most importantly,

the terms of the bargaining agreement prevent the cross-overs

from being considered permanent replacements. In TWA l,

supra, this court decided that those portions of the agreement

not opened for bargaining were not terminated at impasse, but

remained in effect. 809 F.2d at 492. Accordingly, the union

security clause which provides that union membership is a

condition of continued employment with TWA remains in

effect. See 45 U.S.C. § 152, Eleventh (authorizing “closed

shop” agreements). 7

Thus, all cross-overs must retain their union membership.

TWA may not discriminate among union members based on

the degree of their union activity. Accordingly, TWA may not

accord cross-overs permanent replacement status and prevent

full-term strikers from displacing cross-overs with less seniority

because such action impermissibly discriminates among union

members based on the degree of their union activity.

4 The union security clause also requires that new hires obtain umon

; : le . ho

membership in order to continue employment with TWA. New hires, how

; yes

ever, were not union members when they began work during the strike. Thu

new hires cannot be the subject of discrimination based upon union loyalty

and activity.

We note that many of the cross-overs attempted to resign

from the Union. Assuming, without deciding, that Pattern

Makers’ League of North America v. NLRB. 105 S. Ct. 3064

(1985), applies to cases arising under the RLA,’ union mem-

bers may resign from all obligations except that of paying dues

and the Union may not fine them for working during a strike.

Id. at 3071 & n.i6. In the present case, cross-overs have

apparently ceased their union memberships except for payment

of dues. This action only exacerbates the division among union

members along lines of union loyalty. Furthermore, if the

Union cannot penalize its members for working during a

strike, neither may TWA reward those members with perma-

nent replacement status. Accordingly, the cross-overs cannot be

granted permanent replacement status because such action

discriminates on the basis of union activity.

Our review of the law supports our conclusion that the cross-

Overs do not acquire the status of permanent replacements. In

NLRB vy. Erie Resistor, the Supreme Court upheld the NLRB’s

decision that an award of super-seniority to permanent replace-

ments. and cross-overs unlawfully discriminated against those

who engaged in union activity. 373 U.S. at 231-32. Although

TWA has not awarded Super-seniority to the employees who

worked during the strike, several of the concerns voiced by the

Court in Erie Resistor are applicable to the status of the cross-

overs here.

The Court disapproved of super-seniority because the award

operated to the detriment of strikers as compared to non-

strikers; it in effect offered an inducement to abandon the

Strike; and it created a long-term division among the

workforce. Id. at 231. Although an award of super-seniority

brings these concerns into a sharper focus than does the

conferring of permanent replacement status to CTOSS-OVeETS,

In this context, the RLA’s authorization of union shop agreements

may be significant. Under the RLA, union members apparently need only

pay dues if they so desire. Ellis v. Brotherhood of Ry., Airline & $.S. Clerks

466 U.S. 435, 439 (1984). Whether a union orgamized under the RLA map

fine its members for working during a strike is an open question which we

need not decide here.

these concerns are nonetheless present. Awarding the cross-

overs permanent replacement status differentiates employees

on the basis of their union activity, induces employees to

abandon the strike and is likely to create long-term conflict

2d division within the workforce of those working together

under the union security clause.

Cases that have followed Erie Resistor are more explicit

concerning the treatment of cross-overs. In George Banta Co.

v. NLRB, 686 F.2d 10 (D.C. Cir. 1982), cert. denied, 460 U.S.

1082 (1983), the court stated that the nature of the benefit

- conferred on cross-overs was irrelevant. /d. at 19. Rather, an

employer may not divide the workforce into those who en-

gaged in strike activity and those who did not. /d.

The Seventh Circuit has held that an employee who aban-

dons the strike and returns to his pre-strike position is not a

permanent replacement. /nternational Ass'n of Machinists &

Aerospace Workers v. J. L. Clark Co., 471 F.2d 694, 698 (7th

Cir. 1972). The district court, however, felt that J. L. Clark was

probably not good law in light of Giddings & Lewis, Inc. v.

NLRB, 675 F.2d 926 (7th Cir. 1982). We do not agree. Giddings

held that during a layoff, permanent replacements and rein-

stated strikers have a right of recall on the basis of seniority

over unreinstated strikers. /d. at 930. Thus, Giddings in no

wavy casts doubt on the rule that cross-overs returning to their

old positions are not permanent replacements. Furthermore,

the Seventh Circuit has recently approved reliance on J. L.

Clark. See Air Line Pilots Ass’n (ALPA) v. United Air Lines,

802 F.2d 886, 898 (7th Cir. 1986), aff’g, 614 F. Supp. 1020,

1046 (N.D. Ill. 1985), cert. denied, 107 S. Ct. 1605 (1987).

Randall, supra, relied on by the district court, does not

control the decision in this case. The district court determined

that Randall implicitiy approved the grant of permanency to

cross-over employees. At issue in Randall, however, was the

definition of vacancy, and the court merely upheld the NLRB’s

decision that the employer's practice of offering “special-

rated” jobs to employees already working rather than unretn-

stated strikers unlawfully discriminated on the basis of union

activity because Randall was offering an “additional prefer-

ence besides permanence.” /d. at 1246. The status of cross-

10a

over employees as permanent replacements was not an issue in

that case. Furthermore, Randall arose under the NLRA and

the parties were not bound by a closed shop agreement. Thus,

we deem Randall inapplicable to the present case.

Accordingly, we hold that unreinstated strikers are entitled

to displace cross-over employees with lesser seniority.

C. Trainees

The district court held that the 463 trainees who had not

completed their training at the time the strike ended did not

become permanent replacements and thus were subject to

displacement by returning strikers. The court primarily relied

on H. F. Binch Co. v. NLRB, 456 F.2d 357 (2d Cir. 1972). In

writing for the Binch court, Judge Friendly stated that al-

though a permanent replacement need not actually appear on

the job in order to displace a striking employee, the replace-

ment must report within a reasonable period of time. /d. at

362. The district court here decided that two days constituted a

reasonable time, that is, those trainees who did not complete

their Operating experience flights within two days of the

Union's unconditional offer to return to work could not be

pe permanent replacements.

A argues that the district court’s “2-day rule” j

without foundation in the law. It contends a re Rchngrem

not be fully qualified or actually working in order to be

deemed a permanent replacement, relying on Air Line Pilots

Ass'n (ALPA) v. United Air Lines, 614 F. Supp. 1020 (N.D.

Ill. 1985), aff'd in part & rev'd in part, 802 F.2d 886 (7th Cir.

1986), cert. denied, 107 S. Ct. 1605 (1987), and several cases

arising under the National Labor Relations Act (NLRA). TWA

thus asserts that all persons in training at the time of the

Union's offer to return to work on May 17 were permanent

replacements and not subject to displacement by returning

strikers.

In our view, the Seventh Circuit's decision in Air Line Pilots

Ass'n (ALPA) v. United Air Lines, supra, is dispositive of this

issue. We observe that the district court did not have the

benefit of the Seventh Circuit’s AL PA opinion because it was

published after the district court’s decision in this case. On

appeal, however, the Seventh Circuit reversed the district court

and rejected the rationale upon which TWA relies.

In ALPA, the airline hired some 500 pilots to work on the

first day of the strike, but the employer required these pilots to

undergo training before assuming flight duties.” The pilots

refused to cross picket lines and United refused to consider

them employees, thus making their employment contingent

upon crossing the picket fines. The district court had deter-

mined thai the trainees were entitled to employee status as of

the first day of the strike in accordance with the offer by

United and acceptance by the student pilots. 614 F. Supp. at

1042. Accordingly, the district court held that these trainee-

pilots were protected by the RLA and the airline had unlaw-

fully conditioned their employment on crossing a picket line.

Id.

On appeal, the Seventh Circuit reversed the district court's

determination that the pilot trainees qualified as employees.

The Seventh Circuit ruled that an employee as defined by the

RLA must be someone who has actually “performed services

for the employer under that employer's supervision.” 802 F.2d

at 913 (emphasis added). The court based its conclusion on the

plain and specific language of the RLA, which provides RLA

coverage to “ ‘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 authority to

supervise and direct the manner of rendition of his service.” ~

id. at 911 (quoting 45 U.S.C. § 181) (emphasis by the court).

Accordingly, the trainees did not receive employee status and

the protections of the RLA.

We follow the Seventh Circuit's ruling in ALPA. The

trainees in question, although hired by TWA, never performed

6 The piiot trainecs in question were already trained pilots at the time

of their “employment” with United. The training course familiarized them

with United's planes and practices.

7 We note that the positions taken in ALPA differ from the present

case, that is, the union in Al. PA argues that the trainees were emplovees

12a

any services for TWA under its supervision prior to the Union's

offer to return to work. Thus, they cannot be considered

employees within the meaning of the RLA. \

We acknowledge that the circumstances surrounding the

pilot trainees in ALPA differ from the situation here. Specifi-

cally, United expressly told the pilot trainees that they were not

employees and they did not receive a salary pursuant to a

signed agreement with United. In the present case, the opposite

occurred: TWA told the trainees that they were employees and

they received a salary.

These differences, however, are irrelevant under the RLA.

The RLA does not extend its coverage based upon the employ-

er’s labelling of persons as employees or the payment of salary.

Rather, RLA coverage is determined by the work the person

performs under supervision of the employer. This performance

factor is determinative in trainee situations because it is the

only requirement that the statute explicitly includes. Thus,

clear statutory language supports the conclusion that the trai-

ness are not employees protected by the RLA because these

trainees were not “performing any work” of the carrier by any

stretch of the imagination.

This conclusion is further supported by the consequences

resulting from the valid closed shop agreement that remains in

effect between the parties in this case. The contract provides

that union membership is a condition of continued employ-

ment with TWA. Thus, if the trainees were to be considered as

employees, they would need to join the Union and pay dues.

Furthermore, the training school would become a subject open

to collective bargaining. None of these consequences occurred

or have even been contemplated by the parties. In addition,

our previous decision in 7WA addressed the continuing obliga-

tion of Union members to pay dues. This court did not require

trainees to pay dues.

whereas here, the Union argues that the trainees were not emplovees. The

rule applies regardless of which party contends that tramees. not on the job,

qualify as emplovees. The Seventh Circuit's holding is based on an interpre

tation of statutory language and binds all parties

13a

Additionally, the history of TWA’s training program is in-

structive. Prior to the strike, trainees were not considered TWA

employees by anyone. Only when the strike began did TWA

attempt to accord the trainees employee status. TWA’s attempt

_ failed because these trainees did not perform services before

the strike ended. To conclude otherwise would allow an em-

ployer to amass a trainee pool capable of replacing the entire

striking workforce at some future date after the strike has

ended. Such a result is inconsistent with the RLA’s grant of

protections to those persons who actually perform services for

the employer.

Finally, cases decided under the NRLA also support the

rationale that the trainees should not be considered employees.

Under the NLRA, employees remain employed and are pro-

tected from discharge while they are on strike. 29 U.S.C.

§ 152(3). Mackay Radio, supra, recognized an exception to the

statute’s general rule by holding that an employer may hire

replacements for strikers and need not fire the replacements

once the strike has ended. 304 U.S. at 345-46. Mackay Radio is

recognized as an exception to the general rule. Giddings, 675

F.2d at 926 (quoting NLRB v. Mars Sales & Equipment Co.,

626 F.2d $67, $72 (7th Cir. 1980)). Courts have been reluctant

to extend the Mackay Radio exception. See, e.g., Erie Resistor,

373 U.S. at 232; J. L. Clark, 471 F.2d at 698.

Whether the trainees can be considered permanent replace-

ments within the Mackay Radio exception depends upon the

rationale used in Mackay Radio. In that case, the Court

employed a balancing test that weighed the negative impact of

hiring permanent replacements on union activity against the

business justification for dc ing so.

Applying this balancing test to the trainees, the trainees do

not obtain the status of permanent replacements. During the

strike, TWA’s interest in continuing its service required the

replacement of strikers. The training of new people to fill

strikers’ positions was appropriate in fulfilling TWA’s interest.

People who completed their training during the strike and went

to work clearly fit within the Mackay exception. They filled

positions left open by strikers and permitted TWA to operate

more efficiently. Thus the balance tips in favor of TWA.

The balance, however, is different for the trainees who had

not completed their training when the strike ended. The strike

ended when the Union unconditionally offered to return to

work. Thus, TWA could operate with returning strikers. It

established no business need to put trainees into working

positions because all vacant positions could be filled with

returning strikers. Thus, while TWA shows no business justifi-

cation for employing 463 trainees ahead of regular employees

who have ended the strike, TWA’s utilization of trainees to

prevent Union members from returning to their jobs causes

great damage to the Union.

Accordingly, even applying the rationale of NLRA decisions,

unreinstated strikers are entitled to those positions now held by

the 463 trainees.

Although we do not adopt the district court's two-day rule,

the status of the trainees remains the same under our reasoning

as under the district court's two-day ruling. No trainee com-

pleted his or her training between the end of the strike, May

17, and May 20. The district court's two-day rule is more

generous than what we have determined the RLA to allow but

the Union has not objected to the district court's ruling. Thus,

we conclude that any trainee who had not yet performed

services for TWA under its supervision by May 17 is not a

permanent replacement.”

Ill. CONCLUSION

For the reasons stated above, we affirm the district court's

order granting employment preference to the new hires and

denying such preference to the trainees. We reverse the district

court as to the cross-overs. We remand this case and direct the

district court to modify its judgment consistent with this

opinion. TWA is directed to pay one-half the Union's costs in

8 After oral argument in this case, TWA filed a Rule 60163) motion

seeking relief from the district court's decision concerning the trainees. TWA

contends that the district court relied on facts that were misrepresented to the

court,

The district court denied TWA’s motion on February 17, 1987, and directed

that the motion be forwarded to this court. Today's opimon moots the issue

pressed by TWA and we express no further comment on its motion.

pursuing its cross-appeal as well as one-half of the Union's

costs incurred in defending TWA’s appeal.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS,

EIGHTH CIRCUIT.

l6a

APPENDIX B

Order of the U.S. Court of Appeals for the

Fighth Circuit Denying Petition for Rehearing and Suggestion

for Rehearing Fn Banc

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Nos. 86-2197/2319WM

——»>——

The Independent Federation of Flight Attendants, etc.,

Appellee Cross-Appetiant,

vs.

Trans World Airlines, Inc.,

Appellant: Cross- Appellee.

Appeals from the United States District Court for the

Western District of Missouri.

Appellant Cross-Appellee’s petition for rehearing en banc

has been considered by the Court and is denied.

Judges John R. Gibson, Fagg and Bowman would have

granted the petitions. Judges Ross and Magill did not partici-

pate.

Petition for rehearing by the panel is also denied.

August 31, 1987

Order Entered at the Direction of the Court:

Clerk, U. S. Court of Appeals, Eighth Circuit.

17a

APPENDIX C

Order of the U.S. Court of Appeals for the Eighth Circuit

Granting Stay of Mandate Pending Certiorari Proceedings

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Nos. 86-2197/2319WM

The Independent Federation of Flight Attendants, etc.,

Appellee/Cross-Appellant,

vs.

Trans World Airlines, Inc.,

Appellant /Cross-Appellee.

Appeals from the United States District Court for the

Western District of Missouri.

The motion of appellant/cross-appellee for stay of mandate

is granted, and the mandate of this Court is hereby stayed to

and including October 8, 1987. If during that period there is

filed with the Clerk of this Court a notice from the Clerk of the

Supreme Court that appellant/cross-appellee has filed a peti-

tion for writ of certiorari in that Court, the stay shall continue

until final disposition by the Supreme Court.

September 24, 1987

Judge Bright:

Order entered pursuant to your recent directions.

Linda L. Penberthy:eh

cc: Judge Lay

Judge Wollman

APPENDIX D

Memorandum and Order of the U.S. District

Court for the Western District of Missouri

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MISSOURI

ST. JOSEPH DIVISION

No. 86-6084-CV-SJ-6

$3 —___

THE INDEPENDENT FEDERATION OF FLIGHT ATTENDANTS,

an Unincorporated Labor Organization,

Plaintiff,

Vv.

TRANS WORLD AIRLINES, INC.,

Defendant.

MEMORANDUM AND ORDER

Plaintiff (IFFA), a union representing airline flight attend-

ants employed by defendant (TWA), seeks partial summary

judgment ruling the three major controversies presented in

Count 1 of the first amended complaint. TWA has filed a

motion seeking partial summary judgment in its favor on the

same issues. The motions were argued August 25, 1986, and

aaa affidavits were received by leave of court thereaf-

er.

| This is a declaratory judgment action, with a prayer for

incidental relief, relating to TWA’s failure to reinstate Striking

flight attendants at the conclusion of a strike, in May 1986. In

related litigation IFFA seeks a ruling that the strike was

induced by unfair labor practices, in violation of the Railway

Labor Act (RLA), 45 U.S.C. §§ 151, et seq. In the alternative,

19a

in this litigation the parties assume the court will conclude after

a trial in the companion case that there was a strike over

economic issues, beginning March 7, 1986. IFFA asserts that

its members, as economic strikers, are entitled to reinstatement

over three classes of current flight attendant employees of

TWA: (1) some 1220 “new hires,” employed in the first few

days of the strike, who IFFA contends were permanent addi-

tions to the workforce rather than permanent replacements for

strikers; (2) “junior crossovers,” that is, persons who either

worked throughout the strike or returned to work as flight

attendants prior to 10:00 p.m. on May 17, 1986, when IFFA’s

president tendered an offer to return to work (the number who

would be displaced would be no more than 1284 crossovers,

excluding those crossovers who may have seniority over full-

term strikers); and (3) some 463 “trainees” who had begun

flight attendant training but had not completed such training

on May 17, 1986.

TWA has reinstated fewer than 200 full-term strikers. TWA

contends that all of the above categories of workers are entitled

to remain on their jobs if, as TWA contends, the strike in

question was simply an economic strike. TWA further contends

that IFFA did not make an unconditional offer to return to

work, as is required before a duty to reemploy strikers occurs.

All parties seek prompt resolution of these questions and

have been cooperative in stipulating to pertinent facts and in

supplementing such agreed facts with affidavits rather tnan

engaging in contentious discovery. The court relies on a major

stipulation filed July 21, 1986, and has received supplemental

affidavits from affiants Frankovich (August 22), Peltzman and

Laursen (August 25), Hoar (August 29), Chimenti (September

8), as well as large collections of affidavits filed by TWA on

August 12 and by IFFA on September 2 and 3. I conclude that

there are no controversies regarding pertinent facts that would

preclude summary judgment. Facts necessary to ruling will be

recited in connection with the analysis of the union’s three

basic claims and the “conditional offer” defense. That general

defense will be rejected, for reasons set forth below. TWA is

entitled to prevail, in my opinion, on two of the three substan-

20a

tive controversies, and IFFA is entitled to prevail on one of

them (the “trainee” issue).

I—“UNCONDITIONAL OFFER” TO RETURN TO WORK

Before an employer is required to reinstate economic

strikers, and to desist from employing new hires, the parties

agree the law requires that the economic strikers must make an

unconditional offer to return to work. IFFA contends this

occurred at 10:00 p.m. on May 17, 1986, when its president,

Frankovich, delivered to a TWA official, Hoar, a written

Statement offering on behalf of the strikers to abandon the

strike and return to work. TWA contends there were certain

qualifications and conditions unresolved. In any event, TWA

began implementing a reinstatement plan, pursuant to Hoar’s

letter to Frankovich on May 23, 1986. TWA asserts there was a

reservation of rights in Hoar’s letter.

On its face, the May 17 letter (Stip. Exh. 5) is an uncondi-

tional offer, though coupled with an assertion that the IFFA

strikers have a right to reinstatement as unfair labor practice

strikers. Hoar correctly describes it as an offer “on behalf of

all the strikers, to return to work immediately.” Hoar Aff.

August 29, 1986. At various times during the next few days,

TWA raised questions about (1) whether IFFA was demanding

return in seniority order, (2) whether IFFA might resume

striking if its members rejected TWA’s latest settlement pro-

posal, and (3) whether picketing and in particular notices that a

strike was in progress were inconsistent with the offer to

return.

On Sunday, May 18, Frankovich delivered a “clarifying”

letter (Stip. Exh. 6) offering to return the employees in senior-

ity order and asserting a legal duty to reinstate employees in

that order but stating, “Lest there be any misunderstanding,

IFFA’s unconditional offer is made independent of and irre-

spective of the outcome of the membership ratification vote on

TWA’s latest proposal. Moreover, employees will return to

work as directed by the Company.” It was further asserted that

2la

TWA acts “at its peril” legally if reinstatements were made out

of seniority order. While TWA asserts this letter is ambiguous,

| believe it reaffirms the unambiguous offer of May 17 and is

itself fully consistent with an unconditional offer to return to

9 ee further recites, in an uncontested portion of her

affidavit (Frankovich Aff. August 22, 1986), that she gave

immediate instructtons on May 17 to stop picketing with strike

notices. She did not agree to refrain from a

activities publicizing the continuing dispute with TWA. All this

seems legally proper, and the fact that some strike notices were

displayed in New York prior to TWA’s consent to —

strikers was apparently inadvertent and not inconsistent wit

an unconditional offer to return to work. At that point the

wnreinstated workers were in fact “on strike” involuntarily.

The Hoar letter of May 23 (attached to Hoar Aff. August

29, 1986) continues to protest the alleged lack of an uncondi-

tional offer to return to work, and may thus be said to contain

a reservation of rights, as TWA contends. As stated above,

however, I conclude the offer to return was unconditional, and

created a duty to reinstate economic strikers in vacancies as

they develop in the flight attendant workforce.

1 The letter has some significance, however, in appraising the oe rere

rights of striking flight attendants and trainees who had been _poneng —

but not the work of a flight attendant prior to the end of the strike. —

states he is freezing “our active permanent Flight Attendant work force ba :

that strikers will be placed on a preferential rehire list “from which they “

be rehired for active service if immediately available for rong do me

vacancies in order of seniority . . .” This wording ———, ~

active service flight attendants and other employees (such as stri S es

trainees) who bear that title. It seems to be a commitment not to ra

trainees in “active service” vacancies after May 23. It appears, ~ eae toe

trainees were placed as “active flight co we age = poy ® My

i of May.” Stip. . To :

pre ee Ape sien tien would not be required to yield to strikers,

TWA seems to have given two conflicting commitments.

22a

II—CROSSOVERS

At the conclusion of arguinent of the summary judgment

motions | stated from the bench a conclusion that “junior

crossovers” are entitled to retain their positions at the end of

an economic strike, and cannot be displaced by the exercise of

“bumping” rights of full-terms strikers who may enjoy senfor=

ity.

The contract between IFFA and TWA, which I have ruled (in

other litigation) still exists, does not authorize the exercise of

seniority rights to obtain reinstatement after a strike. It does

authorize use of seniority to obtain reinstatement after layoffs,

but that is a different situation. IFFA argues, however, that

labor law principles establish a right to reinstatement, except as

to new hires employed during the strike as permanent replace-

ments for strikers.

It is NOt necessary to recite the law generally applicable to

the right to reinstatement following an economic strike. A brief

overview of the development of the applicable law, under the

National Labor Relations Act, appears in the Eighth Circuit

opinion of Judge Arngjd in Randall, Division of Textron, Inc.

v. NLRB, 687 F.2d 1240, 1244 (8th Cir. 1982), (cert. den. 461

U.S. 914 (1983)). In NLRB v. Erie Resistor Corp., 373 U.S.

221 (1963), the Court struck down an employer’s plan to grant

twenty years’ “superseniority” to persons permanently em-

ployed during a strike, but stated that “an employer may

operate his plant during a strike and at its conclusion need not

discharge those who worked during the strike in order to make

way for returning strikers.” 373 U.S. at 232. This language

from Erie Resistor would protect crossovers as well as new

hires from being displaced after a strike.

The Randall case contains a similar broad statement of the

general rule. Although holding that Randall had violated the

law by giving a form of “superseniority,” the court’s criticism

was that Randall had given “additional preference besides

permanence to those who remained at work as opposed to

those who struck . . .” 687 F.2d at 1246. It is quite clear that

the Eighth Circuit had no criticism of simply giving “perma-

23a

nence” to those who remained at work. It is equally clear that

the court knew it was dealing with a situation involving

crossovers as well as new hires.

In the Randall case, as recited by the Court of Appeals, one

production worker remained with the employer throughout the

strike and a “steady stream of individual strikers” signed up

for work during the strike. Crossovers were then accepted back

on the job in preference to hiring permanent replacements.

Although six unfair labor practice charges were sustained by

the Administrative Law Judge, there was no finding of unlaw-

ful discrimination in the retention of crossovers over full-term

strikers who may have had seniority. Such favored treatment

may not even have been challenged. When Judge Arnold

implied that “permanence” of tenure alone would not be

objectionable, if no additional preference were given to “those

who remained at work,” the Eighth Circuit thereby gave

implicit sanction to the conduct of which IFFA now complains.

IFFA relies on two cases from other circuits, however, and in

addition contends that the Railway Labor Act should be

interpreted to give greater protection for strikers than is con-

ferred by the National Labor Relations Act.

IFFA cites George Banta Co., Inc. v. NLRB, 686 F.2d 10

(D.C. Cir. 1982). It is not clear that Banta dealt with unreinsta-

ted strikers, at least when the case reached the court of

appeals. Even if some of the remarks of the court may be

favorable to the IFFA contention, no reason was suggested for

differentiating between new hires and crossovers. The righi to

retain EEE Cee es ee ne eee en

exception” to the right of reinstatement of economic

(686 F.2d at 20) but the court did not explain, and perhaps had

no occasion to explain, why the protection of new hires should

crossovers who may lack semiority.

gy rn a gen tron i relied on by IFFA is JAM v. J.L.

Clark Company, 471 F.2d 694 (7th Cir. 1972). In that case two

judges on the panel held that a crossover who lacks semiority

may be “bumped” by a returning striker having greater senior-

ity, if the crossover has not changed his work during the strike

and replaced the striker in his old job. No authority or reason

who returned to work during the strike were an less protected

than the new employees. . .” 471 F.2d at 700. Judes Pel sow

no reason 10 give special preference to new hires, as against

crossovers, and no reason has been suggested by IFFA in this

case or is developed in any of the other authorities reviewed by

the court.

It would seem that employers faced with a strike would have

at least as great a practical need for employing crossovers as

new hires, if crossovers can be induced to return to work. The

inducement of permanent rather than temporary employment

is deemed presumptively needed to attract new hires, according

to the Court in the landmark decision of NLRB vy. Mackay

employees to abandon their coworkers and cross a picket line

as it is for new hires to take such action. If Mackay Radio is

sound (and | recognize that some academic critics advocate

disabling employers from hiring permanent replacements for

strikers) the same principles would seem to apply to protect

crossovers.

TWA cites one decision in the Sixth Circuit that indicates

that strikers have no right to “bump” crossovers, if post-strike

2 IFFA's briefing tacitly concedes that TWA made a commitment to its

€ weovers that they could retain their jobs after the strike. One specific

guarantee” against replacement was made on March 17, 1986. Exh. 22 to

Borden affidavit filed August 12, 1986. Even as to crossovers employed

during the first ten days of the strike, this commitment seems effective as a

guarantee of “permanence.” Cf. NLRB v. Murra Products, Inc,

934, 999 (9h Cir. 1978) (helated decision to at disiece =

where not communicated) At least one prestrike communication seems to

Promise prospective crossovers that they will nor be replaced by strikers

Exh. 13 to Borden Aff. of August 12, 1986

* te ee

25a

work of the employer is insufficient to keep all employed.

NLRB v. Harrison Ready Mix Concrete, 770 F.2d 78 (6th Cir.

1985). Additional cases from the Seventh Circuit, such as

Giddings & Lewis v. NLRB, 675 F.2d 926 (7th Cir. 1982), make

questionable whether J.L. Clark would still be followed by that

court.

The language of the courts in Erie Resistor and Randall is

broadly protective of the rights of all persons who work during

a strike. The breadth of that language seems fully justified in

principle and will be followed in this decision.

IFFA’s final argument for its contention that strikers should

have the right to displace crossovers is that the court should

disregard the NLRA precedents in favor of the allegedly

greater protection given employees under the Railway Labor

Act. This contention, which was emphasized at oral argument,

is wholly lacking in support in the cases. On the contrary, the

Second Circuit has recently noted that the Railway Labor Act

explicitly protects only “organizing and representational rights,

as opposed to the broader ‘concerted activity’ rights under the

Wagner Act.” JUFA v. Pan American World Airways, 789 F.2d

139, 141 n.2 (2d Cir. 1986). The only suggestion that employees

may have greater rights under the Railway Labor Act is

contained in rulings where express restrictions in the NLRA do

not appear in the RLA. E.g., BRT v. Jacksonville Term. Co.,

394 U.S. 369 (1971). In the present context it seems desirable to

draw on NLRA experience rather than to create novel princi-

ples applicable only in the Railway Labor Act context. A few

courts have so ruled, when considering reinstatement rights of

airline strikers. National Airlines, Inc. v. IAM, 416 F.2d 998,

1006 (Sth Cir. 1969); ALPA v. United Airlines, 614 F.Supp.

1020 (N.D.1N. 1985).

On the assumption that the IFFA strike that began March 7

was an economic strike, it is therefore concluded that none of

the 1284 crossovers are subject to being displaced by more

senior unreinstated strikers.

26a

III—New Hires

Treating the new hires who came to work on and after

March 7, 1986, as permanent flight attendants, IFFA nonethe-

less contends that their employment cannot block the return of

hires as permanent additions to the workforce rather than as

replacements for strikers. IFFA relies on a pre-strike notice by

TWA to prospective flight attendants (Stip. Exh. 9) that prom-

and the prospect that flight attendants might need to fill the

a of retirees. Thus, TWA asserts, the alternative of being

strike replacements was the eventualit that

= v was ultimately

TWA's factual contention seems the only realistic, practical

way of looking at what occurred. The new hires went through

lectured about their role as strike replacements on March 7 and

the next few days, when the persons in question assumed their

Positions. While it is not established by affidavit that the term

ies replacements” was regularly or frequently used in

3 IPFA’s initial briefing contends that the notice itself is dispositive of the

entire issue. It is difficult to understand that contention because the notice

expressly referred to the possibility that the new hires might be needed for

strike duty

_*.? _ i

27a

describing the function of the new hires, it can hardly have

escaped their attention that a strike was in progress, that

TWA’s flight attendants were for the most part on strike, and

that they as newly hired flight attendants were replacing the

strikers.

IFFA responds with affidavits from a number of former

employees hired on March 7 and the subsequent days denying

that the term “strike replacements” was used in explaining

their role. They uniformly deny they understood they were

being asked to serve as strike replacements. Some of the

affidavits state, however, that the affiants were told they would

be required to cross picket lines if they wanted to retain their

jobs and that jobs would be immediately available if there were

a strike, but work would not be immediately available other-

wise. Taylor Aff. of September 3, Martoia Aff. of September

2, Speere and Alexander drafts of affidavits of September 2

(usable as admissions by IFFA). IFFA contends that mere

subjective theories of an employer do not create a status, citing

a case where temporary employces were not treated as perma-

nent replacements in the absence of evidence that the employ-

er’s description of their status was expressed to the employees.

NLRB v. Murray Products, Inc., supra. While the case so

holds, in considering the issue of “permanence,” a matter of

contract, | doubt that mutual understanding or formal notice

is required on the issue of whether an employee is a strike

replacement. That may be treated as a matter of fact, depend-

ing on how the employee was actually used.

It remains clear, however, even considering the IFFA affida-

vits, that under the circumstances of a strike the new hires had

been at least twice advised in writing that they would be strike

replacements if employed as new hires after a strike began. Mr.

Borden's written statements to that effect, dated November 22,

1985, and February 10, 1986, were distributed to Travel Col-

lege graduates and students. Borden Aff. ¢4 32, 40, referring

to Borden Exhibits 8 and 11 (filed August 12, 1986). The only

reasonable understanding beginning March 7 was that the new

hires were being employed for permanent jobs, with initial

service that may be legalistically referred to as “strike replace-

28a

ment” or more commonly termed strikebreaking. This is

doubtless the way IFFA described the work at the time. and the

description seems accurate. In the derogatory term of the labor

movement, the new hires were “scabs.”*

guishable from strikebreaking, and the facts here speak for

themselves. It is possible, however, it was used in the affidavits

in a post-strike sense: that is, that the affiants may have

thought the new hires could continue working (as promised)

and that the returning strikers would also have jobs. In that

sense, the affiants may have been stating that they did not

believe they were being employed to permanently replace

Strikers but would become additions to the workforce. This

may have been somewhat unrealistic, but it may fairly be

treated as a credible assertion of subjective belief and I so

construe it. .

Nothing in Mackay Radio requires, however, that strike-

breakers who have been offered permanent jobs be told that

the employer anticipates the permanent displacement of the

economic strikers Such displacement 1s permissible under that

decision depending on economic needs of the employer after

the strike.

The only case purportedly contrary to this view is Murray

Products, supra, where one employee was referred to as an

addition to the workforce whose employment could not be

used as a bar to reinstating a returning striker. While the Ninth

Circuit may have been a bit generous in ruling that case

involving the status Of a single employee, it was simply accept-

4 it seers mmaterial for prevent purposes thar TWA may have some

what overemphasized the Prospects for employment without a strike or that

some officials may have demed that « was wmply operating a school for

“scabs.” The alternative of using the pre-strike trainees as strike replace

Ments Was cripressed in writing. distributed to the tramneer by TWA Borden

Aft 3),

employed on and shortly after March 7, 1986, cannot be

IV— TRAINEES

TWA contends that 463 persons who were still trainees on

the date the strike ended may be treated as permanent replace-

ments as flight attendants because they were on TWA's payroll

as flight attendants from the time of entry in training school,

and were paid as flight attendants. It cites cases holding that

persons in training are not precluded from being considered

replacements for fully trained strikers. Other authorities hold

that promises of employment may be honored after a strike, at

least when the belated arrival of the employee on the job

occurs within a revsonable time after the strike ends. At the

S If the law were to the contrary, it would apparently be necessary to try

the individual situations and understandings of more than 1000 current

employees (none of whom has filed an affidavit) to ascertain whether thes

thought they were permanently displacing strikers or would be treated as

additions to the workforce after the strike Given the delay and uncertamry

posed by such an issue, the parties may be fortunate that | do not believe

Mackay Radio requires anything other than the offering of permanent

Positions to mew heres berg uved as strrkhePreakers

for

before the strike ended and a record entry had also been made

by the employer showing that she had replaced a striker. The

court ruled that strikers had not been effectively replaced in

enher instance. Two other employees who had transferred to

strikers’ jobs and were “actually at work” when the strike

ended were held to have displaced strikers.

The court ruled that determination of the question of “Past

what circumstances constituted a hiring to fill the place of

strikers . . . Must be answered in a practical frame.” 456 F.2d

at 361. Although the court drew a protective line in that case

around employees who were actually at work when the strike

ended, Judge Friendly stated that “actual arrival on the job

should not be required if an understanding has been reached

that this will occur at a reasonably early date.” 456 F.2d at 342.

It the hiring process had proceeded so far that the replacement

“would have reasonable ‘grounds for indignation’ if he were

subsequently demed the promised job” Judge Friendly was

Prepared to acc pt the replacement as effective. More than an

employer's pro.nise is requ red, under the Friendly test, how-

ever; there must, in addition. be an expectation that arrival on

the job will occur “at a reasonably early date.”

;

3la

The three day delay in availability in one instance in Binch

apparently made ruling against that purported replacement

comparatively easy. Under the Binch decision, it would not

seem that a striker must wait eround for a replacement who is

not essentially ready for work. While an unseemly race is not

required, very prompt availability seems necessary. One can

conceive of a situation where a replacement might fairly be

allowed several days, if in transit to a distant job, for example.

But arrival at a “reasonably early date” should not require a

returning striker to stand idly by and watch a job disappear

during a substantial or unjustified waiting period.

In the present case, TWA has available a series of arguments.

One is that the trainees in question had been upgraded in

company records to flight attendants and were being paid as

flight attendants, so they should be deemed to be flight

attendants for purposes of displacing strikers, regardless of

their total lack of on-the-job experience. A second theory is

that at least some of the trainees were ready for work within a

very few days of May 17. Finally, the necessity of a training

period is at least arguably consistent with the requirement of

arrival at a “reasonably early date,” when all the trainees were

placed within a six week period.

The Peltzman affidavit, filed August 25, shows that all but

five of the trainees completed their training and were placed on

“operating experience” flights beginning May 20 and ending

June 3. They performed flight attendants’ duties, under super-

vision, on “revenue flights” originating in St. Louis. Place-

ment occurred every day, including Saturdays and Sundays.

There was, however, a break between the evening of May 17

(when Frankovich made IFFA’s offer to return to work) and

the first operating experience flight for 18 trainees on May 20.

We are not informed when the trainees began their regular,

unsupervised duties at an assigned domicile. But it may be

sound, using NLRA precedents, to count on-the-job training

as a basis for replacing strikers. The Peltzman affidavit is,

therefore, usable proof.

32a

What should be treated as a “reasonable time,” however,

under these circumstances? If the month of May were used to

protect replacement rights, most of the trainees would prevail,

but 71 would be deemed tardy. If trainees were deemed to be

required to begin their operating experience flights within five

days of the strikers’ offer to return to work, however, 80 would

prevail, but the bulk of the trainees would be considered too

late. If a two-day rule were used, none of the trainees would

win,

The two-day rule seems most consistent with Judge Friend-

ly’s concept in the Binch case. It has the additional advantage

of using the only period in the record where there was an

appreciable break in the process. It would appear that word of

the Frankovich offer was very promptly circulated, and en-

abled TWA to call a halt to its operating experience flights on

Sunday, May 18, and on Monday, May 19. The resumption of

such flights on May 20 Suggests a reconsideration by TWA, and

adoption of a “hard line” favoring replacement of strikers.

That apparent change in tactics may be fairly treated as

untimely. If TWA was reasonably able to stop the trainees from

going through their final training period, it was obligated to do

sO, in order that its conflicting legal duty to returning strikers

could be honored.°

One must reject the theory that a mere job title and rate of

compensation should be deemed to establish status as a flight

attendant, sufficient to withstand the claims of returning

strikers. A trainee who has never served as a flight attendant

(even as an apprentice under supervision) should not be given

priority of rights, if the questions presented are to be answered

“in a practical frame,” as Judge Friendly suggests.

6 As previously discussed in footnote 1, moreover, on May 23 TWA told

returning strikers that they would have prior rights to vacancies in “active

service.” In violation of this commitment, TWA apparently began to place

trainees im active service on and after May 24, 1986. It is unlikely that

Mackay Radio protects commitments to replacements when an employer has

also made conflicting commitments to returning strikers.

SOO at a ~. ewe Nee

ee ae ene

33a

Allowing TWA to continue training replacements for weeks

after the strike had ended, and giving such trainees priority

over returning strikers, does not seem to satisfy the Binch rule

that on-the-job service must begin at a “reasonably early date”

after commitments have been made. | must respectfully dis-

agree with what seems to be a contrary ruling by Judge Bua,

therefore, when he allowed displacement of striking pilots with

new hires, after the Conclusion of a pilots’ strike, even though

the employer necessarily deferred actual assignments of such

new hires until their completion of a training program. ALPA

v. United Air Lines, Inc., 616 F.Supp. 849, 851 (E.D.1Il. 1985).

For reasons | shall discuss further, this seems an «insound

loosening of the Binch test, which was cited by Judge Bua as

the controlling general principle.’

It would distinctly expand the Mackay Radio principle if

permanent replacements were to include not only persons who

begin working during the strike or immediately thereafter but

also persons who are simply in training at some other site. The

expansion seems unwarranted. Mackay Radio was designed to

meet a perceived need by employers to offer permanent jobs to

strike replacements; otherwise, it is presumed, it will be ex-

tremely difficult to recruit persons who will replace strikers,

most typically by going through a hostile picket line set up by

persons endangered by the prospective loss of a job. Merely

attending a training school typically presents an easier situa-

tion. While str:kers may be expected to bombard trainees with

propaganda, the imminent danger of truly hostile words and

conduct would not seem as likely. Therefore, unlike the

Mackay Radio situation, a pressing need to offer permanent

positions to trainees should not be presumed.

7 The ALPA case is on appeal, and has been argued. The briefing

suggests that for tactical purposes or otherwise the union is seeking an “all or

nothing” ruling. The entire group of unreinstated pilots seeks reinstatement

on the theory there was an unfair labor practice committed; little if any

effort was made on appeal, and perhaps not before the district court, to

replace the late trainees as a separate group

34a

In the present case, | am aware of contentions by TWA that

there was hostility expressed by IFFA picketers at the training

school and that TWA felt a business need to offer the trainees

permanent jobs. Henderson Aff. August 12, 1986, q4 29, 42

44, 56. The degree of hositility has not been shown to ap-

proach that directed toward employees on active service, how-

ever, where there were documented reports of obscene

telephone calls, verbal threats of bodily harm and physical

assaults. Borden Aff. 44 88, 89. Mr. Henderson seems simply

to be reporting his own impressions, without offering any basis

—— comparisons with what was occurring at the air-

rts,

A TWA management official may well have sensed hostility

at the picket line that was no problem for trainees. No

complaints from trainees have been disclosed, and no affida-

vits filed. While the question may be close, I do not believe the

Henderson affidavit suffices to justify an enlargement of

Mackay Radio. A better appraisal might be made after a

hearing, but it seems desirable to rule as a matter of law, rather

than create factual issues that must be fully litigated in each

vase before management or labor will be able to know their

rights in a training school context. The Henderson affidavit

moreover, is so conclusory, lacking in details and explanations.

that a ruling of insufficiency of evidence as a matter of law

would probably be justified at trial, given the substantial

demonstration of business necessity that | believe is required.

if sO, summary judgment is authorized. See Anderson v

Liberty Lobby, Inc., 106 $.Ct. 2508, 2510 (1986). The “sketchy

beginning” of a contention is no bar to summary judgment

Brown v. Trans World Airlines, Inc., 569 Supp. 247. 256

(W.D.Mo. 1983), aff'd. 746 F.2d 1354 (8th Cir. 1984). )

The training school experience was not so onerous as to

cause TWA to dispense with charging trainees $2500 for the

right to Participate in the training program. It would seem that

the rights of economic Strikers, earned as employees after years

of service, should have sufficient legal status so that TWA

should at least have experimented with a reduction in or

relinquishment of the tuition charge before offering trainees

— ee

- Oe

3Sa

permanent employment rights, at the expense of the strikers.

When people are willing to pay to cross a training school picket

line, there can hardly be said to be an obvious business

necessity to offer them guarantees of permanent jobs while

they are in school.*

It is therefore determined, accepting the materials submitted

by TWA that the 463 trainees who had engaged in no operating

experience flights prior to May 20, 1986, and were apparently

not assigned to working positions until at least May 24, 1986,

were not properly retained as TWA flight attendants in prefer-

ence to returning strikers. TWA will be required to reinstate

returning strikers displaced by such trainees, with back pay.

CONCLUSION

It is therefore ORDERED that partial summary judgment be

entered in favor of TWA on IFFA’s claims in Count I for

reinstatement of economic strikers displaced by crossovers and

new hires who worked during the strike, and that partial

summary judgment be entered in favor of IFFA on its claim

for reinstatement of economic strikers displaced by trainees

who did not have operating experience flights prior to May 20,

1986, and were not assigned to active service as regular flight

attendants on revenue flights prior to May 24, 1986.

Economic strikers with enough seniority to have been rein-

stated if the 463 trainees had been displaced instead of given

positions in active service shall be reinstated within 30 days,

absent a stay pending appeal. Back pay with interest, less

interim earnings, shall be promptly paid such reinstated

strikers. In all other respects, IFFA’s claim for injunctive relief

is DENIED. SO ORDERED.

8 The present ruling does not, of course, deal with the question of

whether former trainees now serving as flight attendants may have some

claims against TWA for displacing them with former strikers, under court

order. Conceivably they may have rights under state law for return of their

tuition fees or other remedies. Belknap, Inc. v. Hale, 463 U.S. 491 (1983).

36a

The court retains jurisdiction to i

modify or enforce thi

— A moticn for stay of relief granted Pending appeal =

considered by this court, given the closeness of the

questions and the considerable dislocation caused by this ruling

‘s/

HOWARD F. SACHS

UNITED STATES DISTRICT JUDGE

DATED: Sept. 9, 1986.

APPENDIX E

Order of the U.S. District Court for the Western District of

Missouri Granting Stay Pending Appeal

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MISSOURI

St. JOSEPH DIVISION

No. 86-6084-CV-SJ-6

THE INDEPENDENT FEDERATION OF FLIGHT ATTENDANTS,

an Unincorporated Labor Organization,

Plaintiff,

TRANS WORLD AIRLINES, INC.,

Defendant.

—- ——<)>—___—_—_ |

ORDER GRANTING STAY PENDING APPEAL

On September 9, 1986, judgment was entered on cross

motions for summary judgment, altering the status quo in one

material respect. TWA was directed to re-employ some 400 ful!

term strikers who had not been reinstated at the end of the

strike because some 400 trainees were retained in TWA’s em-

ploy and thereafter given flight attendant positions on com-

mercial flights. The strikers to be reinstated under my ruling

apparently have a minimum of some 20 years seniority as flight

atiendants. :

In order to avoid a precipitous and disorderly change in

airline personnel, the order was to be given effect within 30

days. Thereafter, in order to deal with pending motions, the

effective date was advanced to the end of October 1986. TWA

has appealed and now seeks a stay pending appeal.

38a

The initial ruling noted the possibility of a Stay, based on

“the closeness of the legal questions and the considerable

dislocation caused by this ruling if there is a reversal.” Subse-

quent filings and further study reinforce my inclination toward

granting a stay. While I recognize that in some instances dire

hardship may be caused by a further delay in reinstatement, all

factors to be considered make a stay appropriate.

The balancing of interests in this context is much like that

involved in considering an application for a preliminary in-

Junction, 7 Moore’s Federal Practice (Second Ed.) 62-26. The

major difference is that the party seeking a stay has lost at the

trial court level. When further litigation is clearly justified,

however, as where the likelihood of ultimate success remains

close to 50-50, it seems fair to treat the trial court decision as

simply one round in an ongoing battle, and to view the

questions as involving the right to relief “pending litigation.”

In such a situation preservation of the status quo that existed

before the immediate controversy is one of the strongest

grounds for urging judicial action or inaction. '

In this case the 400-odd full term strikers were not in TWA’s

active employ but the 400-odd trainees were on the payroll

when this controversy developed. That status continued with-

Out interim relief for almost four months of litigation in this

court. A further delay of some six weeks is occurring while the

parties ready themselves for the appeal. While appellate docket

control is of course entirely a matter for the court of appeals it

Many opinions refer to the preservation of the staus quo as the

primary function of equitable relief pending litigation. E.g., Ferry-Morse

Seed Co. v. Food Corn, 729 F.2d $89 (8th Cir. 1984); Land-O-Nod Co. v

Bassett Furniture Ind., 708 F.2d 1338 (8th Cir. 1983) (dissenting opinion);

Morgan v. Fletcher, 518 F.2d 238 (8th Cir. 1975). While exceptional ciecem-

stances may justify an order changing the status quo before judicial review

has become essentially final, | believe that large-scale, disruptive changes

pending litigation are seldom ordered. A trial court decision may be consid-

ered to have finality for these purposes if, unlike the case at bar ‘the chances

of reversal on appeal are deemed minimal. The situation would be quite

different, for example, if I believed the chances were two or three to one that

there would be an affirmance on TWA’s appeal.

dij ea.

39a

may be proper to express the hope that TWA’s motion to

expedite will be granted, as it was in the companion case

involving dues obligations, an issue that is, at least superfi-

cially, less important to the persons affected. For purposes of

this ruling I will assume that a decision on appeal can be

handed down quite early in 1987. If not, the issue of continu-

ing the stay may need further consideration at the appellate

level.”

Denying a stay would necessarily cause termination of em-

ployment of the recent trainees because they have less seniority,

under my ruling, than any of the full term strikers. The

comparative hardship cannot be readily assessed. Doubtless

some of the former trainees were in desperate need of jobs

when they were hired, and would have appealing stories to

relate if affidavits were collected. It may be engaging in

stereotyping to say that the former trainees as a group would

be less likely to suffer hardship from unemployment than will

the senior full-term strikers as a group. Even if I accepted such

a stereotype, however, reinstatement of senior employees

would also cause personal and family dislocations throughout

the flight attendant body employed by TWA. That would

somewhat even the scales. More disheartening would be the

prospect of double dislocation caused by a reinstatement in

November, and a possibie reversal in January or February, for

example.’

The chances for reversal must be candidly considered. Devel-

opments since September 9 have somewhat reduced my con-

cern that the court of appeals might decide that summary

judgment (one way or the other) was premature. The post-

decision affidavits by TWA relate to events in late April. They

could not have been the basis for TWA’s decision, apparently in

2 An alternative might be to require, as a condition of stay, subsistence

level payments for unemployed senior flight attendants lacking such income.

| am aware of no authority, however, authorizing such a solution.

3 Some of the displaced senior flight attendants probably now have

comparable or nearly-comparable jobs. Such persons would doubtless favor

a stay rather than be forced at this point to elect between the jobs they have

and a return to TWA that may be ephemeral.

40a

late March, to give unqualified promises to trainees that they

would not be displaced at the end of the strike even if they had

not completed training. Tensions at the training center had not

reached the level in March where TWA was swayed by facts

rather than legal and economic assumptions when it offered

permanent jobs to the trainees.‘

It therefore seems that the appeal will likely turn on whether

the appellate court agrees with me that there should be a

“training school exception” to the Mackay Radio rule allowing

the hiring of permanent replacements for economic strikers.

I continue to believe that Mackay Radio should be confined

to its own essential fact situation, an appraisal of what is

reasonably needed to induce prospective strike replacements to

go through a hostile picket line to perform the tasks of the

strikers. In confining Mackay Radio to the situs of the “com-

bat duty” I have nothing to offer as precedent other than my

understanding of the Supreme Court’s rationale in Mackay

Radio. \n the only case either party has cited as having direct

bearing on the “training school exception,” Judge Bua as-

sumed there was no such exception. The issue to be ruled is

thus close and lacking in precedent.

Where a trial court ruling would require important changes

in the status quo and the issues are novel or close, stays seem to

be granted with little further analysis. E.g., In re Bradley, 456

F.2d 6 (4th Cir. 1972) (school district merger order in segrega-

tion case); Henderson v. State of Oregon, 405 F. Supp. 1271,

1277 (D.Or. 1975) (adoption of “unisex” life expectancy tables

by public officials should not be required “until and unless this

decision is upheld on appeal”); Davis v. Reagan, 485 F. Supp.

1255 (S.D.lowa 1980) (60-day stay in welfare program case).

Efforts have been made to formulate standards for granting

Stays on appeal. While sometimes helpful to analysis, I suspect

that the ultimate rule must be as broadly stated as it was in

4 As noted in my prior decision denying reconsideration of the Septem-

ber 9 ruling, the events in April might or might not have occurred in the

absence of an offer cf permanent jobs to trainees. It would be speculative to

treat those later events as justifying the prior decision to offer permanent

jobs to trainees.

4la

Washington Metro. Area Transit Comm'n. v. Holiday Tours,

Inc., 559 F.2d 841, 844-5 (D.C.Cir. 1977), where it was said

that trial courts “may properly stay their own orders when they

have ruled on an admittedly difficult legal question and when

the equities of the case suggest that the status should be

maintained.” .

| reemphasize that it is the status quo when this controversy

began that is probably the decisive factor here. A stay will

therefore issue. .

The bond to be posted by TWA should reflect ongoing wage

obligations of about $1 million per month. Assuming an

appellate decision early next year, an $8 million bond will be

required. It is therefore ORDERED that TWA’s obligation

under the September 9 ruling to offer reinstatement and back

pay to certain senior flight attendants is stayed pending appeal,

subject to TWA’s filing with the court an $8 million bond,

approved by the court, within ten (10) days of this order.

/s/

HOWARD F. SACHS

UNITED STATES DISTRICT JUDGE

DATED: October 14, 1986.

42a

APPENDIX F

Text of Statutes Involved

RAILWAY LABOR ACT

45 U.S.C. § 151. Definitions; short title

When used in this chapter and for the purposes of this

chapter—

* * *

Fifth. The term “employee” as used herein includes every

person in the service of a carrier (subject to its continuing

authority to supervise and direct the manner of rendition of his

service) who performs any work defined as that of an em-

ployee or subordinate official in the orders of the Interstate

Commerce Commission now in effect, and as the same may be

amended or interpreted by orders hereafter entered by the

Commission pursuant to the authority which is conferred upon

it to enter orders amending or interpreting such existing orders:

Provided, however, That no occupational classification made

by order of the Interstate Commerce Commission shall be

construed to define the crafts according to which railway

employees may be organized by their voluntary action, nor

shall the jurisdiction or powers of such employee organizations

be regarded as in any way limited or defined by the provisions

of this chapter or by the orders of the Commission.

The term “employee” shall not include any individual while

such individual is engaged in the physical operations consisting

of the mining of coal, the preparation of coal, the handling

(other than movement by rail with standard railroad locomo-

tives) of coal not beyond the mine tipple, or the loading of coal

at the tipple.

43a

§ 152. General duties

Third. Designation of representatives

Representatives, for the purposes of this chapter, shall be

designated by the respective parties without interference, influ-

ence, or coercion by either party over the designation of

representatives by the other; and neither party shall in any way

interfere with, influence, or coerce the other in its choice of

representatives. Representatives of employees for the purposes

of this chapter need not be persons in the employ of the carrier,

and no carrier shall, by interference, influence, or coercion

seek in any manner to prevent the designation by its employees

as their representatives of those who or which are not employ-

ees of the carrier.

Fourth. Organization and collective bargaining; freedom from

interference by carrier; assistance in organizing or

maintaining organization by carrier forbidden; deduc-

tion of dues from wages forbidden

Employees shall have their right to organize and bargain

collectively through representatives of their own choosing. The

majority of any craft or class of employees shall have the right

to determine who shall be the representative of the craft or

class for the purposes of this chapter. No carrier, its officers or

agents, shall deny or in any way question the right of its

employees to join, organize, or assist in organizing the labor

organization of their choice, and it shall be unlawful for any

carrier to interfere in any way with the organization of its

employees, or to use the funds of the carrier in maintaining or

assisting or contributing to any labor organization, labor

representative, or other agency of collective bargaining, or in

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

ployees in an effort to induce them to join or remain or not to

join or remain members of any labor organization, or to

deduct from the wages of employees any dues, fees, assess-

ments, or other contributions payable to labor organizations,

or to collect or to assist in the collection of any such dues, fees,

assessments, or other contributions: Provided, That nothing in

44a

this chapter shall be construed to prohibit a carrier from —

permitting an employee, individually, or local representatives

of employees from conferring with management during work-

ing hours without loss of time, or to prohibit a carrier from

furnishing free transportation to its employees while engaged

in the business of a labor organization.

= * *

Eleventh. Union security agreements; check-off

Notwithstanding any other provisions of this chapter, or of

any other statute or law of the United States, or Territory

thereof, or of any State, any carrier or carriers as defined in

this chapter and a labor organization or labor organizations

duly designated and authorized to represent employees in

accordance with the requirements of this chapter shall be

permitted—

(a) to make agreements, requiring, as a condition of

continued employment, that within sixty days following

the beginning of such employment, or the effective date

of such agreements, whichever is the later, all employees

shall become members of the labor organization repre-

senting their craft or class: Provided, That no such

agreement shall require such condition of employment

with respect to employees to whom membership is not

available upon the same terms and conditions as are

generally applicable to any other member Or with respect

to employees to whom membership was denied or termi-

nated for any reason other than the failure of the em-

ployee to tender the periodic dues, initiation fees, and

assessments (not including fines and penalties) uniformly

required as a condition of acquiring or retaining member-

ship.

(b) to make agreements providing for the deduction by

such carrier or carriers from the wages of its or their

employees in a craft or class and payment to the labor

organization representing the craft or class of such em-

ployees, of any periodic dues, initiation fees, and assess-

ments (not including fines and penalties) uniformly

4Sa

required as a condition of acquiring or retaining member-

ship: Provided, That no such agreement shall be effective

with respect to any individual employee until he shall have

furnished the employer with a written assignment to the

labor organization of such membership dues, initiation

fees, and assessments, which shall be revocable in writing

after the expiration of one year or upon the termination

date of the applicable collective agreement, whichever

occurs sooner.

* * *

(d) Any provisions in paragraphs Fourth and Fifth of

this section in conflict herewith are to the extent of such

conflict amended.

§ 181. Application of subchapter I to carriers by air

All of the provisions of subchapter | of this chapter, except

section 153 of this title, are extended to and shall cover every

common carrier by air engaged in interstate or foreign com-

merce, and every carrier by air transporting mail for or under

contract with the United States Government, 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 authority to supervise and direct the man-

ner of rendition of his service.

§ 182. Duties, penalties, benefits, and privileges of subchapter

I applicable

The duties, requirements, penalties, benefits, and privileges

prescribed and established by the provisions of subchapter I of

this chapter, except section 153 of this title, shall apply to said

carriers by air and their employees in the same manner and to

the same extent as though such carriers and their employees

were specifically included within the definition of “carrier”

and “employee”, respectively, in section 151 of this title.

46a

NATIONAL LABOR RELATIONS ACT

29 U.S.C. § 152. Definitions

When used in this subchapter—

* * *

(3) The term “employee” shall include any employee, and

shall not be limited to the employees of a particular employer,

unless this subchapter explicitly states otherwise, and shall

include any individual whose work has ceased as a consequence

of, or in connection with, any current labor dispute or because

of any unfair labor practice, and who has not obtained any

other regular and substantially equivalent employment, but

shall not include any individual employed as an agricultural

laborer, or in the domestic service of any family or person at

his home, or any individual employed by his parent or spouse,

or any individual having the status of an independent contrac-

tor, or any individual employed as a supervisor, or any individ-

ual employed by an employer subject to the Railway Labor

Act, as amended from time to time, or by any other person

who is not an employer as herein defined.

47a

APPENDIX G

IFFA’s Corrected First Amended Complaint

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MISSOURI!

ST. JOSEPH DIVISION

Civil Action

No. 86-6084-SJ-8

THE INDEPENDENT FEDERATION OF FLIGHT ATTENDANTS, an

Unincorporated Labor Organization, 630 Third Avenue,

New York, New York 10017, :

Plaintiff,

VS.

TRANS WORLD AIRLINES, INC., Kansas City

International Airport, Kansas City, Missouri,

Defendant.

FIRST AMENDED COMPLAINT

Comes now Plaintiff, the Independent Federation of Flight

Attendants (hereinafter “IFFA”) and for its complaint against

Defendant, Trans World Airlines, Inc. (hereinafter “TWA”),

states the following:

COUNT ONE

1. This action arises under and this Court’s jurisdiction is

invoked pursuant to the Railway Labor Act as amended

(hereinafter “RLA”), 45 U.S.C. §151, et seq., and 28 U.S.C.

§1331 and 28 U.S.C. §1337. This Court has jurisdiction under

28 U.S.C. §2201 to grant the declaratory relief requested.

48a

2. Venue properly lies in this judicial district pursuant to 28

U.S.C. §1391.

3. Plaintiff IFFA is a voluntary unincorporated labor orga-

nization with its principal office and headquarters located at

630 Third Avenue, New York, New York. Since April 1, 1977,

IFFA has been and is certified by the National Mediation

Board (hereinafter “NMB”) as the duly designated and autho-

rized exclusive bargaining representative under the RLA of all

TWA employees in the flight attendant craft or class, including

flight attendants in this judicial district.

4. Plaintiff IFFA is a “representative” within the meaning

of the RLA and is subject to its provisions.

5. Defendant TWA is a corporation duly organized and

existing under the laws of the State of Delaware and is engaged

in the common carriage by air in interstate and foreign com-

merce of persons, property and mail. TWA maintains offices,

an overhaul base, and a training center in this judicial district,

and operates flights to and from the Kansas City International

Airport which is located within this judicial district.

6. Defendant TWA is a “common carrier by air”, within the

meaning of Title I] of the RLA, and accordingly a “carrier”

within the meaning of Title I of the RLA, and is subject to the

provisions of the RLA.

7. On April 12, 1983, TWA and IFFA signed an Agreement

(hereinafter “the 1983 Agreement”), establishing the rates of

pay, rules and working conditions of the flight attendants in

- the service of TWA.

8. Under Article 1 of the 1983 Agreement, all TWA flights

which require flight attendants on board the aircraft must be

operated in accordance with the provisions of the Agreement,

and all flight attendants employed by TWA are subject to the

provisions of the Agreement.

49a

9. Under Article 2 of the 1983 Agreement TWA flight

attendants are classified into three categories, cabin attendants,

flight pursers, and service managers. Each of those flight

attendant categories is defined in Article 2 of the Agreement.

10. Article 28 of the 1983 Agreement provides, with respect

to the duration of said agreement:

Except as otherwise specified in this Agreement, this

entire Agreement shall be effective August 1, 1981 and

shall remain in effect until July 31, 1984 and thereafter

shall renew itself without change for yearly periods unless

written notice of intended change is served in accordance

with Section 6, Title | of the Railway Labor Act, as

amended, by either party hereto, at least ninety days prior

to the renewal date each year.

li. By letter dated February 29, 1984, and pursuant to

Section 6 of the RLA, 45 U.S.C. §156, and Article 28 of the

1983 Agreement, TWA served upon IFFA notice of intended

changes in the Agreement and TWA’s proposals relating to such

changes.

12. By letter dated April 27, 1984, and pursuant to Section 6

of the RLA and Article 28 of the 1983 Agreement, IFFA served

upon TWA notice of intended changes in the Agreement and

IFFA’s proposals relating to such changes.

13. Between March 29, 1984 and March 6, 1986, IFFA and

TWA representatives met in conference on numerous Occasions

to discuss said proposed changes in the Agreement.

14. On or about May 13, 1984, TWA invoked the services of

the NMB to assist the parties, through mediation, in reaching

agreement. The NMB docketed the dispute and, on or about

July 12, 1984, appointed a mediator to assist the parties in

their negotiations.

15. No agreement had been reached in the TWA-IFFA nego-

tiations by February 4, 1986 and on that date, in accordance

with RLA Section § first, the NMB notified TWA and IFFA

SGa

that the 30-day “cooling off” period mandated by RLA Sec-

tion 5 First had begun.

16. Pursuant to that notification, if the parties were unable

to arrive at a mutually acceptable agreement by midnight,

March 6, 1986, both parties would be free to resort to self-

help.

17. On March 5, 1986, IFFA commenced an action in the

United States District Court for the Western District of Mis-

souri, Civil Action No. 86-6030-CV-SJ-6, alleging, inter alia,

that TWA had violated the RLA by failing to exert every

reasonable effort to reach agreement and seeking a temporary

restraining order to enjoin TWA from unilaterally implement-

ing any proposed changes in flight attendant rates of pay, rules

or working conditions or taking any other action that would

alter the then existing status quo. IFFA’s request for a tempo-

rary restraining order was denied on March 5, 1986.

18. The parties were unable to agree upon acceptable

changes to the agreement by midnight, March 6, 1986. IFFA

commenced a strike against TWA in the first hour of Friday,

March 7, 1986. Also, TWA announced its intention to unilater-

ally implement many of its previously proposed changes in

flight attendant rates of pay, rules and working conditions.

19. On March 18, 1986, IFFA filed an amended complaint

in Civil Action No. 86-6030-CY-SJ-6 alleging, inter alia, that

IFFA’s strike was caused in whole or in part by unlawful

actions of TWA an

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