# Petition for Writ of Certiorari — TWA, INC. v. Independent Federation of Flight Attendants > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0582%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1989 - **Citation:** 489 U.S. 426 ## Text Cr FARM, _ > Se No. Ze. ns, Court, U.S, R 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 vi 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 4 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. 2 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 3 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 7 - 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. 4 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. 6 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) 9 . . . 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. 10 © It has been a settled principle that strikers have no right 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); © Neither the courts nor the National Labor Relations 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; © Neither the courts nor the National Mediation Board 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. » l2 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- 13 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 14 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.” is (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.”). 16 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. 17 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). 18 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. 19 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. 20 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). 20 Pr .. 21 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. 22 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 23 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). 24 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.”). ia 25 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) 26 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) 25 See C. Morris, The Developing Labor Law 1362 (1983); R. Gorman, Basic Text on Labor Law 641-42 (1976). 27 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 30 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 SS 2a 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 3a 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. 4a 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 Sa (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. 6a 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. 7a 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. 8a 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, 5 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. 9a 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. 4a 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. Sa 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. 7 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. a 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 simpl [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0582%3A02. Public record. Not legal advice.