# Amicus Curiae Brief — TWA, INC. v. Independent Federation of Flight Attendants

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1989
- **Citation:** 489 U.S. 426

## Text

No. 87-548

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

TRANS WORLD AIRLINES, INC.,
Petitioner,
Vv.

INDEPENDENT FEDERATION OF FLIGHT ATTENDANTS,

Respondent.

On Writ of Certiorari to the United States
Court of Appeals for the Eighth Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE
AND BRIEF OF AMICUS CURIAE
THE AIRLINE INDUSTRIAL RELATIONS CONFERENCE

Of Counsel: Harry A. RISSETTO *
MorGAN, Lewis & Bockius THOMAS E. REINERT, JR.
1800 M Street, N.W. ROBERT D. MANFRED, JR.
Washington, D.C. 20036 Roy A. SHEETZ

(202) 467-7130 1800 M Street, N.W.

Washington, D.C. 20036

Counsel for Amicus Curiae
The Airline Industrial
Relations Conference

* Counsel of Record

WILGON - Eres Printinc Co., Inc. - 789-0096 - WasHiINGTON, D.C. 20001

IN THE

Supreme Court of the Wuited States
OCTOBER TERM, 1987

No. 87-548

TRANS WORLD AIRLINES, INC.,

. Petitioner,

INDEPENDENT FEDERATION OF FLIGHT ATTENDANTS,

Respondent.

On Writ of Certiorari to the United States
Court of Appeals for the Eighth Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

The Airline Industrial Relations Conference (AIRCON)
hereby moves this Court for leave to file the attached
brief as Amicus Curiae in support of Petitioner Trans
World Airlines (TWA). Respondent Independent Fed-
eration of Flight Attendants (IFFA) has refused to con-
sent to AIRCON’s participation in this case as an Amicus
Curiae. Petitioner TWA has consented to AIRCON’s
participation.

AIRCON has a substantial interest in the disposition
of this case. AIRCON is an unincorporated voluntary as-
sociation of United States scheduled air carriers formed
to facilitate the exchange of ideas and information con-
cerning personnel and labor relations issues, and to repre-
sent its member carriers in these areas with respect to
legislative, judicial and administrative matters. Because
the decision in this case will have a substantial impact
on collective bargaining and the availability of self-help
during strikes, AIRCON wishes to provide the Court
with an industry-wide perspective on the issues raised by
this case.

(i)

ll

The instant brief suggests an appropriate interpreta-
tion and application of the Railway Labor Act (RLA)
to the post-strike treatment of permanent replacements
and employees who continue working by crossing picket
lines (i.e., “eross-overs”). Although the Railway Labor
Act regulates labor relatiens in the air transport indus-
try, the Eighth Circuit did not examine the RLA’s impact
upon the issues presented by the IFFA-sponsored strike
against Trans World Airlines, but relied upon an errone-
ous analogy to the National Labor Relations Act
(NLRA). Because the parties are concerned primarily
with the decision of the Eighth Circuit which focuses on
an interpretation of NLRA precedent, they may concen-
trate their arguments on the proper interpretation and
application of that Act as a predicate for interpretation
of the Railway Labor Act. AIRCON’s brief suggests to
the Court an alternative approach to the issues framed
by the Eighth Circuit which emphasizes the unique lan-
guage, legislative history, and structure of the Railway
Labor Act. AIRCON believes that its argument centered
upon the Railway Labor Act will be of assistance to the
Court in resolving this case.

WHEREFORE, the Airline Industrial Relations Con-
ference respectfully prays that this Motion be granted,
and that the attached brief be filed.

Respectfully submitted,
Of Counsel: Harry A. RISSETTO *
Morcan, Lewis & BockIvs THOMAS E. REINERT, JR.
1800 M Street, N.W. ROBERT D. MANFRED, JR.
Washington, D.C. 20036 Roy A. SHEETZ
(202) 467-7130 1800 M Street, N.W.

Washington, D.C. 20036

Counsel for Amicus Curiae
The Airline Industrial
Relations Conference

Dated: May 26, 1988 * Counsel of Record

QUESTION PRESENTED

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 va-
cancies for full-term strikers with more “seniority”—who
were permamently 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 reinstatement after a strike?

(iii)

TABLE OF CONTENTS

Page

MOTION FOR LEAVE TO FILE BRIEF AMICUS
REE ARES Te RRC wee SRT RET Ne CR RO i
OU yg By ty | | ane iii
ee I iced iiss discsrtnonicnitendeeanteibonsiatts Vv
eC Ce ioc ceniiccceenseveesctetetidecennensane vii
INTERESTS OF AMICUS CURIAE .............................. 1
i Tn een 3
ERR EEL A Le aN Tn EE ke Ren SE 4

I. The Court Below Erred Not Only In Its Analy-

sis Of NLRA Precedent, But Also In Its Failure

To Consider The Unique Language And Legis-
lative History Of The RLA .................................... 4

A. The Eighth Circuit Ignored The Relevant
I I sdeicuadindon 4

B. Analogies Between The RLA And The NLRA
Must Be Carefully Scrutinized ....................... 6

II. Sections 2 Third And 2 Fourth Of The Railway

Labor Act Have Limited Application Outside
The Context Of A Union Organizing Campaign... 8

A. The Language And Legislative History Of

The RLA Demonstrate An Intention To Pro-

tect Concerted Activity Primarily In The
IT IID inseccstcissatasedicnactbabadeinnaciinsiantions 8

B. Courts Have Circumscribed Post-Certification

Application Of Sections 2 Third And
5 ES Serer eee atibiialical 13

vi

TABLE OF CONTENTS—Continued

C. Sections 2 Third And 2 Fourth Should Be
Given Limited Post-Certification Applica-
TTD ccsscitssitnshineenasesinsegimenasintletiiaiah Aieidiebediattiaaeeitinpaiags

III. Sections 2 Third And 2 Fourth Do Not Prohibit
The Post-Strike Retention Of Cross-Overs._..

A. The RLA Places Few Restrictions On The
Use Of Self-Help After The Exhaustion Of
The Collective Bargaining Process ...............

B. The Lower Courts Are Divided Concerning
The Application Of Sections 2 Third And
2 Fourth In Lawful Strikes 2.000000...

C. Sections 2 Third And 2 Fourth Have No
Application In The Present Case ...................

IV. The Eighth Circuit’s Decision On Cross-Overs
Is Harmful To Labor-Management Relations In
, FR enene EEN oF Re en

SPU NITEINIET ~ sivccenco<ciypinossinsinescendioresentats-aealéninimanaltemneaviamiaabies

Page

15

16

16

17

22

25

vii

TABLE OF AUTHORITIES

CASES Page

Adams v. Federal Express Corp., 470 F. Supp.
1356 (W.D. Tenn. 1979), aff'd 654 F.2d 452 (6th
A Re ee es a Te eee 13
Air Line Pilots v. United Air Lines, 802 F.2d 886
(7th Cir. 1986), cert. denied, 107 S. Ct. 1605

TE ae eee aes en RS 18, 20
Air Line Pilots v. Texas Int'l Airlines, 656 F.2d

I i crclenetinealaginiite 12
APFA v. American Airlines, 843 F.2d 209 (5th

Cir. 1988) (WESTLAW) ..................................... 12, 15
Belknap v. Hale, 463 U.S. 491 (1983) —.................. 23

Brady v. Trans World Airlines, 401 F.2d 87 (3d
Cir. 1968), cert. denied, 393 U.S. 1048 (1969) .. 14
Burlington Northern R.R. v. BMWE, 107 S. Ct.

I i laa aaa etl passim
Caminetti v. United States, 242 U.S. 470 (1916).. 8
Chicago & North Western Ry. v. United Transp.

a fs Sh : . | eee eeecmenen 7,12
Detroit & Toledo Shore Line Ry. v. United

Transp. Union, 396 U.S. 142 (1969) —.....0---... 16
Elgin, Joliet & Eastern Ry. v. Burley, 325 U.S. 711

ERS a RN re arc eae Oa 11
Fechtelkotter v. Air Line Pilots, 693 F.2d 899

I WR IID 2 neon iene te iibnialinbiaaitaiaipiiee 20

IFFA v. Trans World Airlines, 643 F. Supp. 470
(W.D. Mo. 1986), aff'd, 819 F.2d 839 (8th Cir.

TED’ sinicsiansinssininauabpiiilittasinnisigihinendesmnantinnsanpenanannsaied passim
IFFA v. Trans World Airlines, 682 F. Supp. 1003
(W.D. Mo. 1988) (WESTLAW) ......................... 21

IUFA v. Pan American World Airways, 620 F.
Supp. 447 (S.D.N.Y. 1985), aff'd, 789 F.2d 139
ea a ee Ee passim

Kent v. Fugere, 438 F.Supp. 560 (D. Conn. 1977).. 14

Landers v. National Railroad Passenger Corp.,

56 U.S.L.W. 4355 (April 27, 1988) —.................. 7
Locomotive Engineers v. Baltimore & Ohio R.R.,
EE een 16

Machinists v. Alaska Airlines, 124 L.R.R.M.
(BNA) 2458 (W.D. Wash. 1986) —................. 20

viii

TABLE OF AUTHORITIES—Continued

Page
Machinists v. Alaska Airlines, 639 F. Supp. 100
(W.D. Wash.), aff’d, 813 F.2d 1038 (9th Cir.),
cert. denied, 108 S. Ct. 290 (1987) —......000 ee. passim
Machinists v. Eastern Airlines, 320 F.2d 451 (5th
ERS I sce = AA ee eee 15
Machinists v. Northwest Airlines, 673 F.2d 700
I a a passim
Machinists v. Street, 367 U.S. 740 (1961) _........ 10, 13
NLRB v. Erie Resistor Corp., 373 U.S. 221
ERR IN att oe FA ER Se 4
NLRB v. Mackay Radio & Telegraph Co., 304 U.S.
8 EER a ae Re ies La Poe 4
Rachford v. Evergreen Int'l Airlines, 596 F. Supp.
Se I 14

Railway Clerks v. Association for the Benefit of

Non-Contract Employees, 380 U.S. 650 (1965). 13
Railway Clerks v. Florida East Coast Ry., 384

EB NEG OS ee 16, 17
RLEA v. Boston & Maine Corp., 808 F.2d 150

(ist Cir. 1986), cert. denied, 108 S. Ct. 102

EET LE ae RN sei enn ee ATTN OR 18
Roscello v. Southwest Airlines Co., 726 F.2d 217

I 13
Stepanischen v. Merchants Desptach Transp. Corp.,

tan F268 SE3 (ist Cir. 1968) ................................ 13, 18
Switchmen’s Union v. National Mediation Board,

320 U.S. 297 (1943)
Teamsters v. Pan American World Airways, 607

F. Supp. 609 (E.D.N.Y. 1985) _...0000. 0. 5, 19, 20
Texas & New Orleans R.R. v. Railway Clerks,

I I a 12, 13
Texas Int'l Airlines v. AFA, 498 F. Supp. 437

(S.D. Tex. 1980), aff'd, 667 F.2d 1169 (5th Cir.

SENUEEED ccciibbusbaesidaiieseiniincuniihdnmaiiicaiialemaehel Ria 20
Trainmen v. Central of Georgia Ry., 305 F.2d 605

(5th Cir. 1962)
Trainmen v. Chicago River & Indiara R.R., 353

U.S. 30 (1957)

ix

TABLE OF AUTHORITIES—Continued

Page
Trainmen v. Jacksonville Terminal Co., 394 U.S.
a cceneelilien 7, 16,17
Universal Camera Corp. v. NLRB, 340 U.S. 474
IID ccecachhleiectebdebiek oiesemoteniniedapiipiaseginamaiciannesmnidesinticnntte 11
Vaca v. Sipes, 386 U.S. 171 (1967) -...................... 11
STATUTES
Airline Deregulation Act of 1978, 49 U.S.C.
BT CPI. is scrinescetmntemmeimenesnnenmeceninnttinientnennnianns 22
National Labor Relations Act, 29 U.S.C. § 151 et
elas ARE SES See NE passim
a |) cre passim
Section 8(a) (1), 29 U.S.C. § 158(a) (1) passim
Section 8(a) (3), 29 U.S.C. § 158(a) (3)... passim
Pub. L. No. 74-487, 49 Stat. 1189 (1936) —.............. 10
Railway Labor Act, 45 U.S.C. § 151 et seq. 0... passim
Section 2 Third, 45 U.S.C. § 152 Third passim
Section 2 Fourth, 45 U.S.C. § 152 Fourth passim
Section 2 Ninth, 45 U.S.C. § 152 Ninth... 13
Section 3(i), 45 U.S.C. § 153 (i) na nl 11
Section 204, 45 U.S.C. § 184 _. siilaieetainatinitnedi acini ll
MISCELLANEOUS

An Act to Amend the Railway Labor Act to
Cover Every Common Carrier by Air Engaged
in Interstate or Foreign Commerce: Hearings
on 8.2496 Before a Subcomm. of the Senate
Comm. on Interstate Commerce, 74th Cong., Ist
SS 2 ee 10
Railway Labor Act Amendments: Hearings on
H.R. 7650 Before the Comm. on Interstate and
Foreign Commerce of the House of Representa-
tives, 73rd Cong., 2d Sess. 21-23 (1934) —............ 11

IN THE

Suprenwe Court of the United States

OCTOBER TERM, 1987

No. 87-548

TRANS WORLD AIRLINES, INC.,
Petitioner,
Vv.

INDEPENDENT FEDERATION OF FLIGHT ATTENDANTS,

Respondent.

On Writ of Certiorari to the United States
Court of Appeals for the Eighth Circuit

BRIEF OF AMICUS CURIAE
THE AIRLINE INDUSTRIAL RELATIONS CONFERENCE

INTERESTS OF AMICUS CURIAE

Pursuant to Rule 36 of the Rules of the Supreme
Court, the Airline Industrial Relations Conference
(AIRCON) files this brief as Amicus Curiae in support
of Petitioner Trans World Airlines (TWA).' AIRCON

1 AIRCON has filed concurrently with this brief a Motion For
Leave To File Brief As Amicus Curiae, which is necessitated by
the refusal of the Respondent Independent Federation of Flight
Attendants (IFFA) to agree to AIRCON’s participation in this
case as Amicus Curiae.

adopts and supports wholeheartedly the arguments of Pe-
titioner TWA that precedent under the National Labor
Relations Act (NLRA) does not support the Eighth
Circuit’s ruling. As TWA argues, when IFFA abandoned
its economic strike and more senior striking flight atten-
dants attempted to return to work, TWA was not pro-
hibited under NLRA standards from retaining flight at-
tendants who crossed IFFA-sponsored picket lines (7.e.,
“eross-overs”). AIRCON writes separately in order to
emphasize to the Court that the court below almost en-
tirely ignored the unique language, legislative history
and structure of the Railway Labor Act and to provide
an industry-wide perspective on the question before the
Court.

The Airline Industrial Relations Conference has a sub-
stantial interest in the disposition of this case. AIRCON
is an unincorporated voluntary association of United
States scheduled air carriers formed to facilitate the ex-
change of ideas and information concerning personnel
and labor relations matters. AIRCON represents its
member carriers with respect to legislative, judicial and
administrative proceedings in the labor relations and per-
sonnel areas. The membership of AIRCON includes vir-
tually every major air carrier in the United States and,
therefore, AIRCON’s members will be directly and sub-
stantially affected in their labor relations by the resolu-
tion of this case.

The decision of the Eighth Circuit affects both the
ability of carriers under the Railway Labor Act to oper-
ate during a strike and the right of employees to decline
to participate in a strike and to cross picket lines. A de-
cision which effectively requires discrimination against
cross-overs has an obvious impact on a carrier’s ability to
maintain operations during a strike. Thus, this Court's
decision will be of fundamental importance to carriers’
determinations and ability to use self-help and, similarly,
to unions’ determinations and ability to initiate, maintain
or prolong Railway Labor Act strikes.

For these reasons, AIRCON respectfully submits this
brief as Amicus Curiae.

SUMMARY OF ARGUMENT

This case presents a union’s challenge under the Rail-
way Labor Act to a carrier’s post-strike retention of
employees who crossed picket lines (7.e., “cross-overs”’).
IFFA’s claim against TWA arises, if at all, under
Sections 2 Third and 2 Fourth of the Railway Labor
Act, 45 U.S.C. $$ 152 Third and Fourth. Despite the
controlling effect of these provisions, the court below pro-
vided no analysis of the language and legislative history
of the RLA or of the precedent developed under Sections
2 Third and 2 Fourth. Instead, the lower court applied
its misperception of the precedent under the National
Labor Relations Act, and it did so in direct contradic-
tion of this Court’s admonition that utmost care must be
taken in drawing parallels between the NLRA and the
RLA.

Had the court below examined the language and legis-
lative history of Sections 2 Third and 2 Fourth, it would
have discovered that Congress crafted those sections spe-
cifically to protect employees in the organizing context,
a considerably more limited task than was intended for
Sections 7, 8{a)(1), and 8(a)(3) of the NLRA, 29
U.S.C. §§$ 157, 158(a) (1), and 158(a) (3). This distine-
tion obviously restricts the relevance of NLRA principles
to this case. Thus, the court below erred not only by mis-
interpreting NLRA precedent, but also by failing to ree-
ognize that the RLA provides much more limited pro-
tection for employee concerted activity outside the or-
ganizing context than does the NLRA.

Under the unique dispute resolution scheme created by
the RLA, the rights of returning strikers have long been
dealt with in the collective bargaining process, specifi-
cally in the form of back-to-work agreements. IFFA

4

has sought to obtain in federal court what it was
unable to obtain at the bargaining table. But, the lan-
guage, legislative history and structure of the RLA in-
dicate that Congress did not intend the federal courts to
impose ad hoc resolutions on the parties to such disputes.
The decision below, if permitted to stand, will more
deeply immerse the federal courts in RLA strikes and
adversely affect the collective bargaining process.

ARGUMENT

Il. The Court Below Erred Not Only In Its Analysis Of
NLRA Precedent, But Also In Its Failure To Consider
The Unique Language And Legislative History Of The
RLA

AIRCON concurs completely in TWA’s argument that
the Court of Appeals erred in resolving the cross-over
issue below because it misapplied established strike re-
placement precedent under the National Labor Relations
Act (NLRA), 29 U.S.C. § 151 et seq., particularly NLRB
v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938)
and NLRB »v. Erie Resistor Corp., 373 U.S. 221 (1963).
But the Eighth Circuit committed a second fundamental
error by deciding a case under the Railway Labor Act
(RLA), 45 U.S.C. § 151 et seq., exclusively on the basis
of NLRA analogy and without an analysis of the applic-
ability of the Railway Labor Act’s unique provisions to
the issues presented.

A. The Eighth Circuit Ignored The Relevant Provi-
sions Of The RLA

The Eighth Cireuit’s decision does not identify the
provision of the Railway Labor Act that TWA purport-
edly violated. It found unlawful discrimination in TWA’s
treatment of cross-overs, holding that:

.. » TWA may not accord cross-overs permanent re-
placement status and prevent full-term strikers from
displacing cross-overs with less seniority because

5

such action impermissibly discriminates among union
members based on the degree of their union activity.

IFFA v. Trans World Airlines, 819 F.2d 839, 843.

The opinion, however, contains no citation to, let alone
discussion of, the two provisions of the Railway Labor
Act which, if any, must control this case—Section
2 Third and Section 2 Fourth, 45 U.S.C. §§ 152 Third
and 152 Fourth. Sections 2 Third and 2 Fourth are the
only “nondiscrimination” provisions of the Railway Labor
Act that can provide any basis for federal court inter-
vention to protect covered “employees” from employer
retaliation for union-related activities. See Teamsters v.
Pan American World Airways, 607 F. Supp. 609, 614
(E.D.N.Y. 1985) (Sections 2 Third and 2 Fourth chal-
lenge to post-strike treatment of cross-overs); see also
Machinists v. Alaska Airlines, 813 F.2d 1038, 1040 n.1
(9th Cir.), cert. denied, 108 S. Ct. 290 (1987) (Section
2 prohibits employer interference). The court’s state-
ment about discrimination is, therefore, implicitly a con-
clusion that TWA violated Section 2 Third and Section
2 Fourth of the Railway Labor Act, for there are no
other provisions of the Act that even arguably provide a
statutory basis for the Eighth Circuit’s decision.’

2 The District Court more directly addressed the applicable RLA
provisions and standards. The District Court expressly rejected an
IF FA argument that the RLA provided greater protection “or em-
ployee strike activity than the NLRA. /FFA v. Trans World Air-
lines, 643 F. Supp. 470, 475 (W.D. Mo. 1986). The District Court
stated :

IFFA’s final argument for its contention that strikers should
have the right to displace cross-overs 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

The central flaw in the Eighth Circuit’s analysis of
the cross-over issue it that it relied exclusively upon prec-
edent under the National Labor Relations Act applying
and interpreting Sections 7, 8(a)(1), and 8(a)(3), 29
U.S.C. §§ 157, 158(a) (1), 158(a) (3). See 819 F.2d at
843-45. Indeed, the underlying, unaccountable assump-
tion of the Eighth Circuit’s decision is that the RLA is-
sue of retaining cross-overs after a strike is governed
by the standards of Sections 7, 8(a) (1), and 8(a) (3) of
the NLRA. But as argued more fully below, the assumed
equivalence of NLRA and RLA protections of union ac-
tivity in a strike is a proposition unsupported by statu-
tory language, legislative history, or precedent.

Overall, a review of the decision below and the Rail-
way Labor Act leads to the undeniable conclusion that
there are no statutory provisions other than Sections
2 Third and 2 Fourth of the RLA which can conceivably
support IF FA’s claim of an RLA violation.

B. Analogies Between The RLA And The NLRA Must
Be Carefully Scrutinized

In examining the cross-over seniority issue under Sec-
tions 2 Third and 2 Fourth of the RLA, this Court should

avoid the uncritical analogy to the NLRA utilized by the
court below.

The Court has repeatedly opined on the differences be-
tween the RLA and the NLRA and the necessity for only
the most careful comparisons:

rights, as opposed to the broader ‘concerted activity’ rights

under the Wagner Act.” JUFA wv. Pan American World Air-

ways, 789 F.2d 139, 141 n.2 (2d Cir. 1986).
Id. The citation to the Second Circuit’s decision is significant be-
cause JUFA v. Pan American World Airways is a decision under
Sections 2 Third and 2 Fourth which holds that those provisions
have narrower application than the NLRA provisions protecting
“concerted activity.” Thus, the District Court clearly viewed this
case as arising under Sections 2 Third and 2 Fourth of the RLA.

7

It should be emphasized from the outset, however,
that the National Labor Relations Act cannot be im-
ported wholesale into the railway labor arena. Even
rough analogies must be drawn circumspectly with
due regard for the many differences between the
statutory schemes.

Trainmen v. Jacksonville Terminal Co., 394 U.S. 369,
383 (1969); see also Chicago & North Western Ry. v.
United Transp. Union, 402 U.S. 570, 579 n.11 (1971) ;
Trainmen v. Chicago River & Indiana R.R., 353 U.S. 30,
31 n.2 (1957). That the Eighth Circuit failed to follow
the Supreme Court’s directive of care in analogizing be-
tween the NLRA and the RLA should result in an even
more probing analysis of the decision below.

Only last term, the Court followed its stated approach
by refusing to incorporate the NLRA ban on secondary
activity into the RLA after finding the absence of any
statutory basis in the RLA. Burlington Northern R.R. v.
BMWE, 107 S. Ct. 1841 (1987).* The Court should adopt
the same approach here and focus on the unique language
and limited purpose of Sections 2 Third and 2 Fourth
of the RLA in resolving the question of cross-over job
entitlement after a strike.

AIRCON submits that an informed analysis of the
RLA’s applicability to the cross-over controversy will
lead the Court to conclude that the Eighth Circuit’s inter-
vention on behalf of the IFFA, after the Union’s unsuc-
cessful strike against TWA, was without statutory basis.

3 See also Landers v. National Railroad Passenger Corp., 56
U.S.L.W. 4355, 4356 (April 27, 1988) (“We are unwilling to read
into the Railway Labor Act a right to minority union participation
in company-level grievance and disciplinary proceedings that Con-
gress declined to put there.” )

8

II. Sections 2 Third And 2 Fourth Of The Railway Labor
Act Have Limited Application Outside The Context Of
A Union Organizing Campaign

Because IFFA’s challenge to TWA’s post-strike reten-
tion of cross-overs must arise under Sections 2 Third and
2 Fourth of the Railway Labor Act, the decision of the
Court of Appeals is defensible only if it is consistent with
the unique language, legislative history and structure of
those statutory provisions. The court below did not ap-
preciate that the RLA, unlike the NLRA, does not pro-
vide any generalized protection for employee “concerted
activity” and that the protections included in the RLA
are limited to the context of union organizing campaigns.
Thus, the Eighth Circuit erred not only by misinterpret-
ing the NLRA, but also by failing to recognize that the
RLA provides a more circumscribed set of protections
for employee concerted activity than does the NLRA.

A. The Language And Legislative History Of The RLA
Demonstrate An Intention To Protect Concerted
Activity Primarily In The Organizing Context

In a case such as this which arises under a complex
statutory scheme, this Court looks primarily to the lan-
guage of the statute for guidance. See Caminetti v.
United States, 242 U.S. 470, 474 (1916); see also Bur-
lington Northern R.R. v. BMWE, 107 S. Ct. at 1854 n.15
(describing the Court’s traditional focus on the language
of the RLA). An examination of the language of Sec-
tions 2 Third and 2 Fourth of the RLA reveals that
these sections were carefully crafted to address pre-certi-
fication representation disputes, not to address issues that
arise in the context of a mature collective bargaining re-
lationship, and certainly not to address issues related to
the proper application of seniority rights following a
lawful strike.

_ For example, Section 2 Third provides in pertinent
part:

9

Representatives, for the purposes of this chapter,
shall be designated by the respective parties without
interference, influence, or coercion by either party
over the designation of representatives by the other;
and neither party shall in any way interfere with,
influence, or coerce the other in its choice of repre-
sentatives.

45 U.S.C. § 152 Third (emphasis added). By its terms,
Section 2 Third prohibits interference, influence and
coercion with respect to the designation or choice of rep-
resentatives. The statute makes no mention of other
forms of concerted activity nor does it actually use the
phrase “concerted activity” or “concerted action.”’ Com-
pare 29 U.S.C. $157 (NLRA provision protecting the
right to engage in “concerted acitvities”).

Section 2 Fourth is similarly focused on the pre-
certification organizing context. In pertinent part, Sec-
tion 2 Fourth provides:

Employees shall have the right to organize and bar-
gain collectively through representatives of their own
choosing. The majority of any craft or class of em-
ployees shall have the right to determine who shall
be the representative of the craft or class for pur-
poses of this chapter. No carrier, its officers, or
agents shall deny or in any way question the right
of its employees to join, organize, or assist in organ-
izing the labor organization of their choice, and it
shall be unlawful for any carrier to interfere in any
way with the organization of its employees, or to use
the funds of the carrier in maintaining or assisting
or contributing to any labor organization, labor rep-
resentative, or other agency of collective bargaining,
or in performing any work therefor or to influence
or coerce employees in an effort to induce them to
join or remain or not to join or remain members of
any labor organization... .

45 U.S.C. § 152 Fourth (emphasis added). Once again,
the language of Section 2 Fourth evidences a Congres-

10

sional intent to create a limited set of protections that
apply specifically to the organizing context.

The legislative history of the RLA confirms that Con-
gress intended Sections 2 Third and 2 Fourth to be lim-
ited to the organizing context and for the employee pro-
tections of the RLA to be more narrow than the pro-
tections created by the NLRA. See Machinists v. Street,
367 U.S. 740, 759 (1961) (discussing the 1934 amend-
ments to the RLA adding Section 2 Fourth to address
the company union problem). In 1936, Congress amend-
ed the Railway Labor Act to extend its coverage to in-
clude the airline industry. See Pub. L. No. 74-487, 49
Stat. 1189 (1936). This occurred concurrently with
Congress’ consideration of the Wagner Act. See An Act
to Amend the Railway Labor Act to Cover Every Com-
mon Carrier by Air Engaged in Interstate or Foreign
Commerce: Hearings on S. 2496 Before a Subcomm. of
the Senate Comm. on Interstate Commerce, 74th Cong.,
Ist Sess. 25 (1935). In the course of hearings on the
1936 amendments, the following exchange involving the
similarity of the NLRA and RLA occurred between Sena-
tor Minton, Chairman of the Senate Committee on Inter-
state Commerce, and O. S. Beyer, Director of Labor
Relations in the Office of the Federal Coordinator of
Transportation:

Senator Minton: The Railway Labor Act that
you are speaking about up to that point is similar
in character to the so called “Wagner Bill’’?

Mr. Beyer: No; it is not.
Senator Minton: In theory?

Mr. Beyer: In theory it is, only up to the point

of safeguarding employees’ right to organize.
Id. (emphasis added). It is difficult to imagine a more
explicit legislative recognition that the employee protec-
tions provided by the RLA are limited to the organizing

11

context and are not as broad as those provided by the
NLRA. See IUFA v. Pan American World Airways, 739
F.2d at 141 n.2.

Interpreting Sections 2 Third and 2 Fourth as pri-
marily directed at pre-certification representation dis-
putes is completely consistent with the statutory dispute
resolution framework of the Railway Labor Act. To en-
sure employee freedom of choice in the selection of rep-
resentatives, Congress included the judicially enforce-
able prohibitions on employer interference in Sections
2 Third and 2 Fourth. See Railway Labor Act Amend-
ments: Hearings on H.R. 7650 Before the Comm. on
Interstate and Foreign Commerce of the House of Repre-
sentatives, 73rd Cong., 2d Sess. 21-23 (1934). Once a
collective bargaining representative is selected by em-
ployees and certified by the National Mediation Board,
the Act uses two principal mechanisms for the resolu-
tion of disputes. First, an almost interminable process
of collective bargaining is established to deal with dis-
putes over the formation of new agreements or “major
disputes.” See Elgin, Joliet & Eastern Ry. v. Burley,
325 U.S. 711, 723 (1945). Second, the Act imposes a
duty upon the carrier and the union to establish a
“Board of Adjustment” for the resolution of “minor dis-
putes” which are defined as “disputes . . . growing out
of grievances, or out of the interpretation or application
of agreements concerning rates of pay, rules or working
conditions. .. .” 45 U.S.C. §§$153(i) and 184.

When Congress enacted the NLRA and its broad pro-
tections under Sections 7, 8(a)} (1), and 8(a)(3) for em-
ployee concerted action, it also created a quasi-judicial
administrative agency with special expertise in labor re-
lations to enforce those broad protections. See Vaca v.
Sipes, 386 U.S. 171, 179-80 (1967) (describing NLRB
jurisdiction); Universal Camera Corp. v. NLRB, 340
U.S. 474, 488 (1951) (describing NLRB expertise). In
contrast, conspicuously absent from the RLA scheme is
any analogue to the National Labor Relations Board’s

12

jurisdiction over unfair labor practice charges. This ab-
sence can be explained by the reliance of the Railway
Labor Act upon private dispute resolution procedures of
negotiation and arbitration. The private and consensual
character of the Railway Labor Act—itself a product of
negotiation ‘—has also circumscribed the judicial role
for enforcement of the RLA to intervention to ensure
that the Act’s procedures for resolving major, minor, or
representation disputes are functioning. Air Line Pilots
v. Texas Int'l Airlines, 656 F.2d 16, 19-20 (2d Cir.
1981).° The absence of an enforcement agency analo-
gous to the NLRB and the limited role for judicial en-
forcement under the RLA strongly support a narrow
reading of Sections 2 Third and 2 Fourth.

In short, the language, legislative history and struc-
ture of the RLA demonstrate that Sections 2 Third and
2 Fourth are narrow-gauge provisions intended to pro-
tect employees engaged in organizing activity. It is
simply erroneous to equate these RLA provisions to Sec-

* The Supreme Court has recognized that the Railway Labor Act
was negotiated between carriers and unions and has relied upon
this fact in holding that it creates limited restraints upon self-
help and the collective bargaining process. Burlington Northern
R.R. v. BMWE, 107 8. Ct. at 1852 n.13; see also Texas & N.O.R.R.
v. Railway Clerks, 281 U.S. 548, 560-64 (1930).

5 See 1UFA v. Pan American World Airways, 789 F.2d at 141
(“Running through Congress’ exacting allocation of administrative
jurisdiction is a ‘thread’ of judicial intervention in cases in which,
‘but for the general jurisdiction of the federal courts there would be
no remedy to enforce the statutory commands which Congress had
written into the Railway Labor Act.’”); APF'A v. American Airlines,
843 F.2d 209 (5th Cir. 1988) (WESTLAW) (judicial intervention
under the RLA only when “the essential framework for bargaining
between management and the union has broken down.”): see also
Chicago & N.W. Ry. v. United Transp. Union, 402 U.S. 570, 581
(1971) (major disputes); Machinists v. Northwest Airlines, 673
F.2d 700, 707-08 (3d Cir. 1982) (minor disputes) ; Teras & N.O.R.R.
v. Railway Clerks, 281 U.S. 548 (representational disputes).

,

13

tions 7, 8(a) (1), and 8(a) (3) of the NLRA, which pro-
vide oroad protection to almost all types of employee
concerted action and apply both before and after a col-
lective bargaining relationship has been established.

B. Courts Have Circumscribed Post-Certification Ap-
plication Of Sections 2 Third And 2 Fourth

In Texas & New Orleans R.R. v. Railway Clerks, 281
U.S. 548 (1930), this Court’s first and only application
and interpretation of Section 2 Third, the Court recog-
nized that the core purpose of that provision is to pro-
tect organizing activities. The Court held that there
was a private cause of action to enforce Section 2 Third
in federal court, but this holding was limited to the pro-
tection of unrepresented employees from carrier retalia-
tion for union organizing activity. In Switchmen’s Union
v. National Mediation Board, 320 U.S. 297 (1943), this
Court examined the rights created by Section 2 Fourth
in the context of a court challenge to a representation
determination of the National Mediation Board
‘(NMB). The Court concluded that Congress intended
the NMB’s representation procedures under Section
2 Ninth, 45 U.S.C. § 152 Ninth, rather than the federal
courts, to be the principal enforcement mechanism for
representation rights under Section 2 Fourth. /d. at
300-03; see also Railway Clerks v. Association for the
Benefit of Non-Contract Employees, 380 U.S. 650, 659
(1965) ; Machinists v. Street, 367 U.S. at 759.

For over fifty years, the lower courts have followed
this Court’s lead and enforced Sections 2 Third and
2 Fourth principally to protect the RLA’s representation
procedures and to ensure the employees a free choice of
union representation. See, e.g., Roscello v. Southwest
Airlines Co., 726 F.2d 217 (5th Cir. 1984) ; Stepanischen
v. Merchants Despatch Transp. Co., 722 F.2d 922 (1st
Cir. 1983); Adams v. Federal Express Corp., 470 F.
Supp. 1356 (W.D. Tenn. 1979), aff'd, 654 F.2d 452 (6th

14

Cir. 1981); Kent v. Fugere, 438 F. Supp. 560 (D. Conn.
1977).

Since Texas & N.O.R.R., unions and represented em-
ployees have also attempted to secure judicial enforce-
ment of Section 2 Third, and Section 2 Fourth, outside
of the organizing context. With markedly few excep-
tions, however, courts have resisted these efforts and
have adhered to Congress’ clear intent to restrict these
provisions. As one court recently stated:

Sections 152 Third and Fourth by their own terms
apply to the designation and choice of representa-
tives, and section Fourth specifically prohibits em-
ployer interference with formation of the labor or-
ganization. Courts generally have given limited
scope to this special statutory protection for the for-
mation of labor organizations, and have held that
section 152 Third and Fourth give limited rights
outside the context of a representation contest.
IUFA v. Pan American World Airways, 620 F. Supp.
447, 455 (S.D.N.Y. 1985), aff'd, 789 F.2d 139 (2d Cir.
1986) (citations omitted); see also Machinists v. North-
west Airlines, 673 F.2d at 707; Rachford v. Evergreen
Int'l Airlines, 596 F. Supp. 384, 386 (N.D. Ill. 1984).

In refusing to consider post-certification claims under
Sections 2 Third and 2 Fourth, courts have often noted
that once a union is certified by the National Mediation
Board and one of the RLA’s non-judicial, dispute resolu-
tion mechanisms is available to deal with the labor-man-
agement controversy in question, there is limited need
for federal court involvement. See Machinists v. North-
west Airlines, 673 F.2d at 707. Conversely, the cases in
which courts have exercised jurisdiction over a Section
2 Third or Section 2 Fourth claim outside of the or-
ganizing context, all involve extraordinary factual pat-
terns which have resulted in the Act’s dispute resolu-
tion procedures being rendered ineffective. See, ¢.9.,
Brady v. Trans World Airlines, 401 F.2d 87, 93 (3d
Cir. 1968), cert. denied, 393 U.S. 1048 (1969) (breach

15

of the duty of fair representation) ; Trainmen v. Central
of Georgia Ry., 305 F.2d 605, 608-09 (5th Cir. 1962)
(Adjustment Board procedure rendered ineffective). But
see Machinists v. Eastern Airlines, 320 F.2d 451, 454
(5th Cir. 1963) (limiting Central of Georgia to its
facts); APFA v. American Airlines, 843 F.2d 209 (5th
Cir. 1988) (WESTLAW).

C. Sections 2 Third And 2 Fourth Should Be Given
Limited Post-Certification Application

AIRCON does not believe that it is necessary in this
case for the Court to define definitively the scope of ju-
dicial enforcement of Sections 2 Third and 2 Fourth.
But the Court should recognize that Sections 2 Third and
2 Fourth do not provide the type of pervasive protection
for “concerted activity” provided by Sections 7, 8(a) (1),
and 8(a)(3) of the NLRA. Rather, the RLA provisions
are intended only as statutory protections of the em-
ployees’ free choice of a representative through the rep-
resentation procedures administered by the National Me-
diation Board.

If Sections 2 Third and 2 Fourth are to be given any
post-certification application, then it should be limited to
circumstances where the Act’s non-judicial dispute reso-
lution procedures have been rendered ineffective or, al-
ternatively, where a carrier has undertaken a sustained
effort to “destroy a union” or otherwise made a “funda-
mental attack on the cul.ective bargaining process.” Ma-
chinists v. Alaska Airlines, 813 F.2d at 1040; see also
APFA v. American Airlines, 843 F.2d 209 (5th Cir.
1988) (WESTLAW); JUFA v. Pan American World
Airways, 789 F.2d at 141-42; Machinists v. Northwest
Airlines, 673 F.2d at 708-09. The mere allegation that a
particular action may have an adverse impact on a union
is simply insufficient to create federal court jurisdiction
under Sections 2 Third and 2 Fourth in a post-certifica-
tion context. Machinists v. Alaska Airlines, 813 F.2d at

16

1040-41: Machinists v. Northwest Airlines, 673 F.2d at
709. As discussed more fully below, the issue of retention
of cross-overs in an economic strike meets neither of these
narrow potential exceptions allowing post-certification
enforcement of Section 2 Third and Section 2 Fourth.

Ill. Sections 2 Third And 2 Fourth Do Not Prohibit The
Post-Strike Retention of Cross-Overs

A. The RLA Places Few Restrictions On The Use Of
Self-Help After The Exhaustion Of The Collective

Bargaining Process

As demonstrated above, Section 2 Third and Section
2 Fourth were enacted for the specific purpose of pro-
tecting employees from carrier interference in union
organizing drives, prior to the National Mediation
Board’s certification of a union as exclusive bargaining
representative. Accordingly, Section 2 Third and Sec-
tion 2 Fourth have little, if any, relevance to questions
of a carrier’s exercise of self-help in collective bargaining
disputes after a union has been certified and after ex-
haustion of the RLA “major dispute” procedures.

Until recently, lawful strikes under the Railway Labor
Act have been relatively rare phenomena. This is not
surprising because the Act’s major dispute procedures
for resolving collective bargaining disputes are “virtually
endless”, encompassing “negotiation, mediation, volun-
tary arbitration, and conciliation.” Burlington Northern
R.R. v. BMWE, 107 S. Ct. at 1850; see also Detroit &
Toledo Shore Line Ry. v. United Transp. Union, 396
U.S. 142, 148-49 (1969); Trainmen v. Jacksonville
Terminal Co., 394 U.S. at 378. Yet implicit in the Rail-
way Labor Act is the parties’ right to engage in eco-
nomic self-help once the Act’s procedures are exhausted.
Locomotive Engineers v. Baltimore & Ohio R.R., 372
U.S. 284, 290-91 (1963); Railway Clerks v. Florida
East Coast Ry., 384 U.S. 238, 244 (1966).

17

This Court has been hesitant to interpret the RLA
as constraining the parties in their ultimate exercise of
self-help. In Burlington Northern R.R. v. BMWE, 107
S. Ct. 1841, the Court rejected a carrier argument that
the RLA contains a limitation on union secondary boy-
cotts derived from the Act’s structure and an analogy
to the NLRA. Quoting the Court’s prior decision in
Trainmen v. Jacksonville Terminal Co., 394 U.S. at 392,
the Court stated:

[Plarties who have unsuccessfully exhausted the
Railway Labor Act’s procedures for resolution of a
major dispute . . . [may] employ the full range
of whatever peaceful economic power they can mus-
ter, so long as its use conflicts with no other obliga-
tion imposed by federal law.

107 S. Ct. at 1852. The Court also has recognized a car-
rier’s right to self-help by authorizing the modification
of existing agreements during a strike in order to per-
mit continued operations. See Railway Clerks v. Florida
East Coast Ry., 384 U.S. 238 (1966), as analyzed in,
Burlington Northern R.R. v. BMWE, 107 §S. Ct. at 1853
n.14.

If, as advocated by IFFA and implicitly supported by
the Eighth Circuit, Sections 2 Third and 2 Fourth apply
to a post-certification exercise of lawful self-help, then
the Court would be creating a new and higher level of
judicial intervention in major disputes. Such an expan-
sion in application of Sections 2 Third and 2 Fourth,
more than fifty years after Texas & N.O.R.R., is not jus-
tifiable under the language, legislative history or the
structure and purposes of the RLA.

B. The Lower Courts Are Divided Concerning The Ap-
plication Of Sections 2 Third And 2 Fourth In
Lawful Strikes

A number of federal courts have recently applied Sec-
tion 2 Third and Section 2 Fourth in strike situations.
The Seventh Circuit and First Circuit recently have

18

cited these provisions to restrict carrier self-help under
the RLA. These decisions commit the same fundamental
error: they fail to consider the unique characteristics
of the RLA which, as Burlington Northern holds, regu-
lates self-help less than the NLRA.

The Seventh Circuit in Air Line Pilots v. United Air
Lines, 802 F.2d 886 (7th Cir. 1986), cert. denied, 107
S. Ct. 1605 (1987!, found unlawful, in part under Sec-
tions 2 Third and 2 Fourth, a carrier effort to rebid all
pilot positions on the airline during a strike. In reach-
ing this conclusion, the court relied heavily on an anal-
ogy to Section 8(a)(3) of the NLRA. 802 F.2d at 897-
98. Like the Eighth Circuit’s decision below, the Sev-
enth Circuit’s decision is suspect because that court
failed to address the pre-certification focus of Sections
2 Third and 2 Fourth of the RLA. /d.

In RLEA v. Boston & Maine Corp., 808 F.2d 150 (1st
Cir. 1986), cert. denied, 108 S .Ct. 102 (1987), the First
Circuit found that job abolishments imposed by a carrier
against strikers and sympathy strikers violated Section
2 Fourth as discriminatory retaliation for union activ-
ity. The facts involved the volatile and controversial
Maine Central dispute, which the Court reviewed in
Burlington Northern. The First Circuit also relied upon
a broad reading of Section 2 Fourth that seems incon-
sistent with its own prior decision in Stepanischen v.
Merchants Despatch Transp. Corp., 722 F.2d at 927,
which recognized that Section 2 Fourth was directed to-
ward protecting organizing activity.

In contrast, the Ninth Circuit recently considered a
factual record akin to the current dispute in Machinists
v. Alaska Airlines, 813 F.2d 1038. In a recall of sym-
pathy strikers after a strike, the carrier gave priority
to permanent replacements and employees who had
crossed the picket lines. The union challenged the recall
under Sections 2 Third and 2 Fourth. The Ninth Cir-

7

who alleged they were dis-
ing to organize a union,” 813 F.2d
at 1040, or (2) “a fundamental! attack on the collective
bargaining process” or “a direct attempt to destroy a
union”, 813 F.2d at 1040. Because the union presented
a seniority question and a current agreement covered
the sympathy strikers, the Court of Appeals concluded
that the seniority rights of recalled strikers was a minor
dispute within the exclusive jurisdiction of an adjust-
ment board.* See also Teamsters v. Pan American World
Airways, 607 F. Supp. at 614 (sympathy strikers do not
state Section 2 Third claim relating to order of recall;
seniority issues are a minor dispute}. In contrast, here,
where no collective bargaining agreement provision was
applicable, the cross-over issue is committed to collective
bargaining.

AIRCON submits that the Ninth Circuit’s analysis of
a strike recall issue under Sections 2 Third and 2 Fourth
is correct as a matter of law. The provisions were not
intended to be applicable after union certification.
Therefore, unless a union can establish a “fundamental
attack on the collective bargaining process”, judicial in-
tervention under Section 2 Third and Section 2 Fourth

with respect to strike replacement issues is inappropri-

*The Ninth Circuit appreciated that the real complaint under-
lying the allegation of statutory violations was that the union had
not prevailed in its contest of economic muscle against the carrier:

[The union) does not contend that Alaska [Airlines] was at-
tempting to interfere with the workers’ choice of a bargaining
representative; the union alleges only that the recall plan
weakens their union by replacing members, and so violated the
RLA. This roundabout effort to reach a statutory violation is
not a sufficient ground for a court to assume jurisdiction.

813 F 2d at 1040-41.

ate. Whether the fact patterns in the United Air Lines
or Boston & Maine cases could have met that necessary
standard of carrier action cannot be determined retro-
spectively. But certainly, those cases’ facile analogy be-
tween the NLRA and the RLA in applying Sections
2 Third and 2 Fourth should not be extended to support
a general rule prohibiting the retention of cross-overs
after a strike.

C. Sections 2 Third And 2 Fourth Have No Application
In The Present Case

The Railway Labor Act provides a mechanism for re-
solving the cross-over dispute that IFFA has sought
for the federal courts to decide—collective bargaining.
Under the RLA, the rights of returning strikers are a
well-recognized topic of bargaining and, historically,
such rights have been protected by means of back-to-

work agreements.’

For whatever reasons, IFFA and TWA were not able
to reach a back-to-work agreement that covered the
rights of the returning strikers in the instant case. Now,
by means of this litigation, IFFA is attempting to
achieve the very protections it did not obtain in bargain-
ing. However, the absence of an agreement does not
indicate a failure of the collective bargaining process
necessitating judicial intervention. It may simply indi-
cate that one or both parties have been inflexible in their

7 AIRCON records indicate that since deregulation there have
been nineteen strikes in the industry and fifteen have ended with
back-to-work agreements. See, ¢.¢.. Air Line Pilots v. United Air
Lines, 802 F.2d at 894 (7th Cir. 1986); Fechtelkotter v. Air Line
Pilots, 693 F.2d 899, 900 (9th Cir. 1982); Machinists v. Alaska
Airlines, 639 F. Supp. 100, 101 (W.D. Wash. 1987); Machinists ov.
Alaska Airlines, 124 L.R.R.M. (BNA) 2458 2459 (W.D. Wash.
1986); Teamsters v. Pan American World Airways, 607 F. Supp.
at 610; Teras /nt'l Airlines v. AFA, 498 F. Supp. 437, 441 (S_D.
Tex. 1980), aff'd 667 F.2d 1169 (5th Cir. 1982). See infra note 9.

21

bargaining demands. But the Court should not encour-
age the parties to litigate for the purposes of obtaining
negotiation leverage. As the Court noted in Burlington
Northern:

An injunction does not settle a dispute—it simply
disables one of the parties. Moreover, . . . the avail-
ability of such self-help measures . . . may increase
the effectiveness of the RLA in settling major dis-
putes by creating an incentive for the parties to

107 S. Ct. at 1854.*

Viewed in this context, the language and legislative
history of the Railway Labor Act become even more com-
pelling. Congress drafted two limited provisions, Sec-
tions 2 Third and 2 Fourth, to protect employee rights
in the organizing context. For the post-certification pe-
riod, Congress established a delicately balanced set of
dispute resolution mechanisms. The disputes that under-
lie this litigation have been statutorily committed by
Congress to the RLA bargaining processes and have his-
torically been resolved in that manner. The federal
courts are not authorized by the statute to impose a con-
tract on the parties in the form of a back-to-work man-
date.

8 In another case between the parties, subsequently decided, /FFA
v. Trans World Airlines, 682 F. Supp. 1003 (W.D. Mo. 1988)
(WESTLAW), the court rejected an IFFA claim that TWA had
violated Section 2 First through its bargaining approach. In reach-
ing its conclusion, the court noted:

IFFA had caused many millions of dollars of damage to TWA,
and had vigorously ‘roasted’ the new ownership. It is not a
function of the court to insist that an employer cheerfully
accept strike losses or show generosity in victory. A lawsuit
should protect a party from the proven results of illegal con-
duct but does not serve as a safety net insuring against all
forms of grievous injury.
WESTLAW slip op. at 59.

22

IV. The Eighth Circuit’s Decision On Cross-Overs Is Harm-
ful To Labor-Management Relations In The Airline
Industry

When analyzed from a practical perspective of labor-
management relations in the airline industry, the Eighth
Cireuit’s decision is indefensible because of the perni-
cious effects that it will have on carriers and em-
ployees. Even more significant, the ruling below will
interject the federal courts into airline collective bar-
gaining in a manner that will have a serious destabliz-
ing effect.

In the extraordinarily competitive, post-deregulation
airline industry, an air carrier confronted with a work
stoppage of any duration has a strong impetus to at-
tempt to operate. In the current environment, market
share lost during a strike may never be regained or
may only be regained at a great cost to future profit-
ability.”

The Eighth Cireuit’s decision will seriously undermine
a carrier’s efforts to avoid these dire economic conse-
quences by substantially handicapping its ability to

* During the past decade, labor relations in the airline industry
have undergone a fundamental transformation. As a result of the
Airline Deregulation Act of 1978, 49 U.S.C. § 1301 et seq., unprece-
dented competitive pressures have disrupted labor market stability
and heightened the confrontational dimension of collective bargain-
ing. Virtually every major air carrier has experienced some form
of labor strife and the federal courts have been challenged with the
unprecedented task of applying the Railway Labor Act to this vola-
tile environment. See supra note 7. In the 1980's alone the industry
has suffered several important strikes: in 1980-81 Continental was
struck by the Union of Flight Attendants and Pacific Southwest Air-
lines was struck by the Southwest Flight Crew Association; in 1982
Northwest was struck by the International Association of Machin-
ists; in 1988 Continental was struck by the Machinists; in 1985
United Air Lines was struck by the Air Line Pilots, Alaska Airlines
was struck by the Machinists, and Pan American was struck by the
Transport Workers Union; in 1986 Trans World Airlines was struck
by the Independent Federation of Flight Attendants.

maintain any semblance of normal operations during a
strike. After all, few junior employees will accept the
psychological and even physical risks of crossing a
picket line when they know that, after the strike, they
will almost certainly be displaced by senior returning
strikers. Without some critical mass of experienced em-
ployees who are willing to cross picket lines and work
during a strike, the chances of a carrier successfully
operating during a strike are greatly reduced, particu-
larly if the striking union represents more highly skilled
employees for whom there is limited availability of per-
manent replacements (e.g., pilots or mechanics). More-
over, once unions realize that carriers will be unable to
operate, an important deterrent to strikes will be lost.

The Eighth Circuit’s decision also penalizes junior em-
ployees unfairly. Consider, for example, the plight of a
junior employee in a strike during which the carrier
attempts to continue operations. Once the carrier starts
to hire permanent replacements, the Eighth Circuit’s de-
cision will make the junior employee’s options very un-
appealing: (1) the employee can remain on strike, have
his or her position filled by a permanent replacement
and, at the conclusion of the strike, he or she can wait
(possibly years) for a vacancy to occur; or (2) the
employee can cross-over but, if the Eighth Circuit is
correct, the low seniority employee will be replaced by
a more senior, returning striker at the conclusion of
the strike. This result is unfair to the junior employee
because, even if he or she works during the strike, he
or she cannot achieve as secure a status as a new-hire,
permanent replacement. See Belknap v. Hale, 463 U.S.
491 (1983). Thus, rather than protecting a junior em-
ployee’s freedom to engage in or to refrain from strik-
ing, the Eighth Circuit effectively mandates that a junior
employee join the strike as his or her best hope for
securing a position. Alternatively, the decision of the
Eighth Circuit encourages a junior employee to pursue the

24

dubious course of resigning and seeking re-employment
(without seniority) as a permanent replacement.

Finally, the Eighth Cireuit’s decision will have a de-
stabilizing effect on labor relations by making it more
difficult to negotiate back-to-work agreements. Histor-
ically, such agreements have been used in the airline
industry to resolve voluntarily not only issues related to
the rights of strikers vis-a-vis replacements and cross-
overs, but also questions related to discipline for strike-
related misconduct, pension and health and welfare con-
tributions for the period of the strike, settlement of other
related litigation and the order of recall in connection
with the resumption of normal operations. See supra
note 7. By interpreting the RLA in an interventionist
manner, the Eighth Circuit has virtually assured that
these useful agreements will become less common. When
negotiating back-to-work agreements, carriers will un-
doubtedly seek some protection for employees who crossed
over during the strike. Unions, however, will find it
politically difficult to concede on this point because such
a concession would necessarily involve a waiver of the
“statutory rights” created by the Eighth Circuit. Thus,
the Eighth Circuit’s prohibition on retaining cross-overs
will, paradoxically, make the resolution of strikes more
difficult.

Indeed, this once again raises the central flaw of the
Eighth Circuit’s decision: without a statutory basis,
the federal courts are being interjected into what has
heretofore been committed to collective bargaining. The
entire history of labor legislation in this country and
particularly the Railway Labor Act, however, has been
based upon the premise that issues between labor and
management are better resolved through private negoti-
ation than through legislative or judicial intervention.
The decision of the Eighth Circuit should be reversed as
an important reaffirmation that this policy is still pre-
dominant.

25

CONCLUSION

For the foregoing reasons, Amicus Curiae The Airline
Industrial Relations Conference urges that the Court re-
verse the decision below.

Respectfully submitted,
Of Counsel: Harry A. RISSETTO *
MorGAN, Lewis & Bockius THOMAS E. REINERT, JR.

1800 M Street, N.W.
Washington, D.C. 20036
(202) 467-7130

ROBERT D. MANFRED, JR.

Roy A. SHEETZ

1800 M Street, N.W.

Washington, D.C. 20036

Counsel for Amicus Curiae
The Airline Industrial
Relations Conference

* Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0582%3A10. Public record. Not legal advice.