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

MULIUO DRM

MAY 2 6 1988

No. 87-548

In the Supreme Court of the United States

OCTOBER TERM, 1987

TRANS WORLD AIRLINES, INC.,

Petitioner,

VS.

THE INDEPENDENT FEDERATION OF FLIGHT

ATTENDANTS,

Respondent.

On Writ or CERTIORARI TO THE UNITED STATES COURT

or APPEALS FOR THE EIGHTH CIRCUIT

MOTION OF CROSSOVER FLIGHT ATTENDANTS

FOR LEAVE TO FILE AMICUS CURIAE BRIEF

AND

BRIEF OF AMICUS CURIAE CROSSOVER FLIGHT

ATTENDANTS IN SUPPORT OF PETITIONER

Mark P. JOHNSON

Counsel of Record

Davip L. WING

Amy L. PEcK

of Spencer, FANE, Britt & BROWNE

1400 Commerce Bank Building

1000 Walnut Street

Kansas City, Missouri 64106-2140

(816) 474-8100

Attorneys for Amicus Curiae,

Crossover Flight Attendants

926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030

E. L. Menpennatt, INe.,

a

Sn

| ,

i a

ve fs mn %:

‘oe > 3 :

. es ao 4 ’ ;

’ ay ye’

: yh

“J y uibnt A . “i

yy + %

a ae ;

rea Ci an ‘

ee -

‘ ae 2 , f

° oa : $

: Ya le a

Ord, | Pprelea§

ae. é i wy 7

ie . :

4° } oft a peat,

av é 7 :

Pe oa e

tu;

7 *

Protecting Crossovers From Displacement

Bi at the End of a Strike Properly Accords

II

TABLE OF AUTHORITIES

Cases

George Banta Co. Inc., Banta Div. v. NLRB, 686 F.2d

10 (D.C. Cir. 1982), cert. denied, 460 US. 1082

CI cinesnenannininoreninnentensvimncmensatnmetanstet 15

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

St 13

Lodges 743 and 1746, etc. v. United Aircraft Corpora-

tion, 534 F.2d 422 (2nd Cir. 1975), cert. denied, 429

U.S. 829 (1976) —.......... scipesiteiiasincsncaaninaasiivintinasiannastaasiaeen 13

Lone Star Industries, Inc., 279 NLRB No. 78 (1986),

enf. denied, 125 LRRM 3063 (1st Cir. 1987) -........-.--. 15

NLRB v. American Olean Tile Co., 826 F.2d 1496 (6th

Cir. 1967) -..---.---------------c-e-n-nceeensnennnnsnesenennrsssesnenenennnnenenannes 15

NLRB wv. Erie Resistor Corp., 373 U.S. 221 (1963) -..... ll

NLRB v. Granite State Joint Beard, 409 US. 213

(1972) .. paciai = we

NLRB v. Sapvteen Ready Miz Cuenta, ‘ee. 770 ) F.2d

7B (Gth Cir. 1985) —.......---------------------eceeeecnseneneneeenenenenneees 14

NLRB v. Mackay Radio & Tel. o., 304 US. 333

(1DBB) -.-----.----n-nee-ceneceeeceeeseeneeeecerenenncenenenenencnsesenamanenennes 10, 11, 12

NLRB v. Moore Business Forms, Inc., 574 F.2d 835

(5th Cir, 1978) -....-.----------------c-cee-cceeceeecneencenennenteensnenenenees 12

NLRB v. Rubatex Corporation, 601 F.2d 147 (4th Cir.

1979), cert. denied, 444 U.S. 928 (1979) ...........---- 12

NLRB v. Swedish Hospital Medical Center, 619 F.2d

33 (Oth Cir. 1980) —....-.-.------------n-ceceecececneeeeeeeneneetenennenens 12

NLRB v. Transport Company of Texas, 438 F.2d 258

(Bite Cle. 1971) -...-.--------------0--0---20--0-0--neensensoesnssneoennseneveneenes 14

Pattern Makers’ League of North America v. NLRB,

473 U.S. 95, 105 S.Ct. 3064 (1985) -................-------- 7,8

Ill

Randall, Division of Textron v. NLRB, 687 F.2d 1240

(8th Cir. 1982), cert. denied, 461 U.S. 914 (1983) ....12, 13

Scofield v. NLRB, 394 U.S. 423 (1969)...

Statutes

National Labor Relations Act, 29 U.S.C. §151 et seq. ....

Railway Labor Act, 45 U.S.C. §151 et seq. -........--.----...---

Railway Labor Act, Section 1, 45 U.S.C. §15la ...............

7

7

No. 87-548

In the Supreme Court of the United States

OCTOBER TERM, 1987

TRANS WORLD AIRLINES, INC.,

Petitioner,

vs.

THE INDEPENDENT FEDERATION OF FLIGHT

ATTENDANTS,

Respondent.

On Writ or CERTIORARI TO THE UNITED STATES COURT

or APPEALS FOR THE EIGHTH CIRCUIT

MOTION OF CROSSOVER FLIGHT ATTENDANTS

FOR LEAVE TO FILE AMICUS CURIAE BRIEF

IN SUPPORT OF PETITIONER

This Motion is filed by a group of approximately 500

Trans World Airlines (“TWA”) flight attendants, collec-

tively referred to as the Crossover Flight Attendants. Re-

spondent Independent Federation of Flight Attendants

(“IFFA”), the collective bargaining representative of the

TWA flight attendants, called a strike against TWA in

2

1986. The Crossover Flight Attendants chose not to par-

ticipate in the stiike or returned to work during the strike.

The Crossover Flight Attendants respectfully move the

Court for leave to file a Brief Amicus Curiae supporting

the position of Petitioner TWA. The names of the Cross-

overs on whose behalf this motion and brief are filed are

listed in their amicus curiae brief filed with the Court in

Case No. 86-1650.

The issue here is whether, after the strike ended, the

Crossover Flight Attendants were protected against dis-

placement by the flight attendants who refused to work

during the strike, just as the permanent economic re-

placements hired during the strike were protected from

displacement. The decision of the United States Court of

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

would require TWA to displace many experienced Cross-

over Flight Attendants, even though inexperienced new

hires are insulated from displacement.

The Crossover Flight Attendants present a unique

viewpoint in this case. For many of them, their continued

employment hinges on how the Supreme Court will rule.

Under the decision of the Eighth Circuit, full-term strikers

would displace many Crossovers, causing them to lose

their jobs. The Crossover Flight Attendants represent

the singular interests of the individuals with a great per-

sonal stake in this Court’s decision. TWA, IFFA, and

other amici curiae can present the issues from a traditional

employer-union point of view, but they cannot profess to

represent the particularly personal interests of the Cross-

over Flight Attendants, whose livelihoods are at stake.

TWA has consented to the filing of a Brief Amicus

Curiae by the Crossover Flight Attendants. This Motion

is made necessary by IFFA’s refusal to give its consent.

3

For all of the reasons stated above, the Crossover

Flight Attendants respectfully request leave to file the

following Brief as Amicus Curiae.

Respectfully submitted,

Mark P. JOHNSON

Counsel of Record

Davip L. WING

Amy L. PECK

of SPENCER, FANE, Britr & BROWNE

1400 Commerce Bank Building

1000 Walnut Street

Kansas City, Missouri 64106-2140

(816) 474-8100

Attorneys for Amicus Curiae,

Crossover Flight Attendants

No. 87-548

In the Supreme Court of the United States

OCTOBER TERM, 1987

TRANS WORLD AIRLINES, INC.,

Petitioner,

vs.

THE INDEPENDENT FEDERATION OF FLIGHT

ATTENDANTS,

Respondent.

On Writ or CERTIORARI TO THE UNITED STATES COURT

or APPEALS FOR THE EIGHTH CIRCUIT

BRIEF OF AMICUS CURIAE CROSSOVER FLIGHT

ATTENDANTS IN SUPPORT OF PETITIONER

I. INTEREST OF AMICUS CURIAE

The interest of the Amicus Curiae is stated in the Mo-

tion preceding this Brief and is incorporated herein.

II. INTRODUCTION

The Court will doubtless receive briefs not only from

TWA and IFFA, but also from numerous other amici curiae,

and these briefs will in all probability address the issues in

terms of employer vs. union. Given that fact, one could

forget the people whose jobs are at stake here: the Cross-

6

overs. This case involves not just dollars and cents, but

the jobs of people who have suffered unrelenting abuse

for lawfully choosing to remove (as they thought) the

threat of their replacement by TWA, by returning to work,

crossing a picket line established by a union which they

believed no longer had their best interest at heart. The

ruling of the Eighth Circuit would deny many of the

Crossovers the right to earn their livelihoods.

The Crossovers’ jobs hang in the balance. TWA

and IFFA have stipulated that many of the Crossovers

are junior in seniority to full-term strikers. Stipulation

No. 27, Petition for Writ of Certiorari, at 6la. If the

Court affirms the Eighth Circuit’s aberrant ruling, the

junior Crossovers will be removed from their jobs, irrep-

arably disrupting their lives and families.

Wl. ARGUMENT

A. The Denial of Protected Status to the Crossover

Flight Attendants Deprives Them of the Effec-

tive Exercise of Their Statutory Right Not to En-

gage in Concerted Activity.

For many years the Supreme Court has shown great

sensitivity to the right of employees to make free choices

in deciding whether to support or oppose union efforts

against employers. The ruling of the Eighth Circuit in

this case would eviscerate this Court’s holdings that free

choice is the rule which must govern all employee deci-

sions to engage in union activity. That ruling would

eliminate the principal reason for an employee either

to refuse to join a strike or to return to work during

a strike: the preservation of his job.

7

Each of the Crossovers made the difficult decision

to cross a picket line of co-workers. Writing for the

majority in NLRB v. Granite State Joint Board, 409

U.S. 213 (1972), Mr. Justice Douglas acknowledged the

difficult personal decision faced by every employee who

considers abandoning a strike:

Events occurring after the calling of a strike may

have unsettling effects, leading a member who voted

to strike to change his mind. The likely duration

of the strike may increase the spector of hardship

to his family; the pace with which the employer

replaces the strikers may make the strike seem less

provident.

Id. at 217.

Since its inception, the Railway Labor Act, 45 U.S.C.

$151 et seq. (“the RLA”), has protected the rights of

carriers’ employees, such as the Crossovers, to decide

whether or not to support labor organizations: “[t]he

purposes of the [RLA] |include]: ... (2) to forbid

any limitation upon freedom of association among em-

ployees.” RLA Section 1, 45 U.S.C. §15la. Under the

National Labor Relations Act, 29 U.S.C. §151 et seq.,

this Court has explicitly recognized the statutory right

of employees to choose not to engage in concerted activity

such as a strike. Pattern Makers’ League of North Amer-

ica v. NLRB, 473 U.S. 95, 105 S.Ct. 3064, 3068 (1985).

In implementing the free choice granted employees

by the federal labor laws, the federal courts have cor-

1. With respect to the “protected status” of crossovers, why

did Granite State state that strikers would consider returning

to work to protect against their replacement by newly-hired

employees, if crossing the picket line did not protect their post-

strike employment vis-a-vis unreinstated full-term strikers?

8

rectly determined that employees must be free from

pressures which would act to deny effectwe exercise of

that right to choose freely. For example, in Pattern

Makers’ League the Supreme Court found reasonable a

National Labor Relations Board decision that the NLRA

prohibits any union rule preventing employees from re-

signing from union membership at any time, including

during a strike. As a result, the Court approved the

NLRB’s decision that a union could not justify fining

employees who resigned from the union and returned

to work during a strike, by relying on a union rule against

resignations at that time. The union’s attempt to fine

the employees violated the NLRA because it abridged

their full and effective exercise of NLRA Section 7 rights.

Id. 473 US. at ....., 105 S.Ct. at 3076. Implicit in the

Court’s reasoning is the understanding that a union rule

against resignation, although not itself preventing em-

ployees from crossing a picket line, effectively denies

unfettered exercise of the employees’ statutory rights by

acting as a deterrent to their free choice.

Union fines against an employee returning to work

during a strike are also unlawful, if the employee has

lawfully resigned from the union. As the Court observed

in NLRB v. Granite State Joint Board, 409 U.S. 213,

“. . . when a member lawfully resigns from the union,

its power over him ends.” Id. at 215. In that case, the

union attempted to fine employees who resigned union

membership and abandoned a strike. The Court found

the imposition of fines on those employees would, to

quote an earlier decision concerning the power of unions

to impose fines, “‘invade|| or frustrate[] an overriding

policy of the labor laws...” Id. at 216, quoting Scofield

v. NLRB, 394 U.S. 423, 429 (1969). The “overriding

9

policy of the labor laws” violated by the union in Granite

State was the right of employee free association guaran-

teed by NLRA Section 7. Granite State Joint Board,

409 U.S. at 218 (Burger, C.J., concurring).

The Eighth Circuit’s ruling here would specifically

deny the Crossovers the right to exercise effectively their

power to refuse to participate in the strike against TWA.

If a union’s refusal to accept a crossover’s membership

resignation, or its attempt to impose a fine on the cross-

over, violates the crossover’s statutory right to refrain

from concerted activity, a union effort to deny the cross-

over a job is equally coercive, if not more so.

If this Court adopts the Eighth Circuit’s reasoning that

strikers may displace crossovers on a seniority basis (even

though no provision in the TWA-IFFA collective bargain-

ing agreement or the RLA requires reinstatement to

vacancies after a strike in order of seniority), striking

employees would be put to the Hobson’s choice of resign-

ing their jobs and seeking employment as newly-hired

permanent replacements, thereby throwing away the bene-

fits accrued from their seniority. Clearly, that is no real

choice; it is a coercive denial of the employee’s right not

to strike.

If employees have the right to refuse to take part in

or support a strike, as is clearly the case under both the

NLRA and the RLA, they must be free to exercise that

right by returning to work, as the Crossovers did here.

Strikes are not without risk to strikers and their union.

Striking employees risk losing their jobs to replacements

if the employer,is able to prevail in the strike. However,

the Eighth Circuit’s decision would increase that risk, by

effectively ending the incentive for strikers to return to

10

work before the union chooses to end the strike. This

would place all strikers at the mercy of the union leader-

ship, a result hardly contemplated by the RLA or NLRA.

B. Protecting Crossovers From Displacement at the

End of a Strike Properly Accords Them Equiva-

lent Status With Newly-Hired Permanent Eco-

nomic Replacements.

The Eighth Circuit’s decision is an unprecedented

and unprincipled attempt to deprive the Crossovers of

their jobs, even though there is no substantive difference

between the situation of the Crossovers and that of the

new hire replacements, whose jobs are protected. The

Crossovers and new hires should be accorded equal status.

The Eighth Circuit's unprecedented decision under-

mines the careful balance between employers and eco-

nomic strikers maintained by this Court since its decision

in NLRB v. Mackay Radio & Tel. Co., 304 U.S. 333 (1938).

The courts have long recognized a balance of rights be-

tween employers and economic strikers: employees may

strike for better wages, hours, and working conditions

and their employer remains free to operate its business

during a strike. In Mackay, the employer offered perma-

nent employment to those who replaced its economic

strikers. The Court found that an employer can lawfully

“replace .. . striking employees with others in an effort

to carry on the business” and that the employer need “not

... 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.” Id. at 345-46 (emphasis

added). The Court reasoned that while discharging or

otherwise discriminating against economic strikers tips

11

the balance too far in favor of the employer, offering and

providing permanent employment to those who replace

economic strikers maintains the balance. The Court drew

no distinction between the types of replacements who may

replace strikers, i.e., crossovers or new hires.

In NLRB v. Erie Resistor Corp., 373 U.S. 221 (1963),

the Court held that an award of super-seniority to new

hires and crossovers unlawfully discriminated against

those who took part in the strike. The super-seniority

award would have insulated the new hires and crossovers

against future layoffs, as against reinstated full-term

strikers who had greater pre-strike seniority. Id. at 231-33.

The Court found that although the employer’s interest in

maintaining and operating its business outweighed the

damage to concerted activities caused by permanently

replacing strikers, a different result was necessary when

the employer offered the inducement of “super-seniority

in addition to permanent replacement.” Id. at 232 (em-

phasis added).

In purporting to apply Mackay and Erie Resistor, the

Eighth Circuit held in this case that the Crossovers had

no protection against displacement by senior full-term

strikers, even though the newly-hired replacements were

protected. The Eighth Circuit’s reading of Erie Resistor is

clearly contrary to the rulings of this Court and of other

Courts of Appeals. Where a court has found an employer

guilty of treating full-term economic strikers discrimina-

torily, the crossovers have received benefits from the em-

ployer beyond the mere assurance of a job when the

strike ended. In other words, the illegal conduct was

that the crossovers were given something vis-a-vis rein-

stated strikers that they did not have before the strike

began.

12

The decisions of the Courts of Appeals demonstrate

that tangible benefits to crossovers, beyond permanency,

are necessary before an employer is guilty of interfering

with an employee’s free and uncoerced choice to return

to work or remain on strike. For example, in NLRB v.

Rubatex Corporation, 601 F.2d 147 (4th Cir. 1979), cert.

denied, 444 U.S. 928 (1979), the Fourth Circuit held

that an employer cannot give bonuses only to crossovers

and nonunion employees who worked during a strike,

under the rationale that these employees helped the com-

pany preserve its reputation. The Fifth Circuit in NLRB

v. Moore Business Forms, Inc., 574 F.2d 835 (5th Cir.

1978), held that after the termination of a strike, an

employer may not permanently assign strikers to less

desirable shifts and crossovers and new hires to more

desirable shifts, when before the strike the company

policy had been to rotate shifts. The Ninth Circuit in

NLRB v. Swedish Hospital Medical Center, 619 F.2d 33

(9th Cir. 1980), held that the compensatory day off

given to crossovers to reward them for added stress

during the strike was discriminatory.

However, the Eighth Circuit has determined that of-

fering to employees what they had before, to wit, a job, is

an unlawful inducement to quit a strike. This is a curious

holding from the same Circuit that paraphrased Mackay

as deciding that “an employer is entitled to solicit re-

placements by guaranteeing them a measure of perma-

nence, even though as a result strikers may be induced

to abandon a strike to avoid being replaced.” Randall.

Division of Textron v. NLRB, 687 F.2d 1240, 1246 (8th

Cir. 1982), cert. denied, 461 U.S. 914 (1983) (emphasis

13

added). Moreover, the Eighth Circuit in Randall cited

with approval Giddings & Lewis, Inc. v. NLRB, 675 F.2d

926 (7th Cir. 1982), which held that layoffs of crossovers

and permanent replacements after the termination of a

strike do not create vacancies to which unreinstated

strikers are entitled to return when the employer decides

to order a recall. Randall, 687 F.2d at 1247.

The Eighth Circuit’s decision also unfairly differen-

tiates between new hires and crossovers, the former being

permanent replacements under its decision, and the latter

simply employees. Under this decision, a striker with

twenty years’ seniority could displace a crossover with

nineteen years’ experience, but not a new hire with but

one day on the job. According to the Eighth Circuit,

permanent status apparently is only for the new em-

ployees hired during the strike, not the prestrike em-

ployees who returned to work during the strike. In other

words, a crossover with less seniority than the strikers,

but still more than the new hires, will be forced to

“resign” and apply for work as a new hire, if he or she

wishes to retain a job when the strike ends.

The Eighth Circuit’s distinction between permanent

replacements and crossovers runs counter to the decisions

of other Circuits. For example, the Second Circuit in

Lodges 743 and 1746, etc. v. United Aircraft Corporation,

534 F.2d 422 (2nd Cir. 1975), cert. denied, 429 U.S. 829

(1976), held that those employees who were absent during

an economic strike out of fear of violence did not volun-

tarily incur a risk of loss of their jobs, and could be

2. The Eighth Circuit’s decision becomes even more in-

credible when one recalls that the very replacements at issue

in Mackay were crossovers.

14

accorded status superior to that of employees who actively

took part in tue strike. Thus, the employer’s reinstatement

of the nonstrikers before the reinstatement of the strikers

was not unlawful discriminatory treatment. In NLRB

v. Transport Company of Texas, 438 F.2d 258 (5th Cir.

1971), the Fifth Circuit held that an employer could refuse

to reinstate economic strikers if the employee comple-

ment was filled by nonstrikers and new employees hired

during the strike. When the strike ended and the strikers

applied for reinstatement, the employer recalled only

enough strikers to fill the number of employees needed.

The nonstrikers and new hires were not displaced. In

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

(6th Cir. 1985), the Sixth Circuit considered an economic

strike in which nine employees crossed the picket line and

fifteen new employees were hired before the end of the

strike. The court stated that two employees who crossed

the picket line (but were among the last to do so) were

not treated discriminatorily when they were not given

full-time jobs, because the employer had a sufficient busi-

ness justification to refuse to reinstate them in light of

the low work demand at that time. Id. at 80. In other

words, even though these employees were senior to the

employees who crossed the picket line first, the employer

need not displace those employees for them. Indeed, the

court stated that the employer was not compelled to

displace any of the employees who worked during the

strike to make room for the returning strikers. Id.

TWA was not acting discriminatorily when it refused

to displace the Crossovers for returning strikers. It was

not discrimination against the strikers for TWA to accept

the Crossovers’ decisions to return to work and to refuse

to reinstate strikers solely by seniority. (TWA had told

15

all strikers they would be reinstated if they returned to

work during the strike, if vacancies were available). In-

deed, as the Sixth Circuit stated in NLRB v. American

Olean Tile Co., 826 F.2d 1496 (6th Cir. 1987), there is no

right to recall according to seniority in the absence of such

a provision in a collective bargaining agreement or a bind-

ing past practice. In the absence of such a right, an em-

ployer may establish a new recall procedure so long as it

is “applied consistently.” Id. at 1500, citing Lone Star

Industries, Inc., 279 NLRB No. 78 (1986), enf. denied, 125

LRRM 3063 (1st Cir. 1987).

In American Olean, the employer used a chronological

list of employees who offered to return during the strike

to fill vacancies that arose after the strike. The court

found that the employer did not use the list “with the

purpose of discriminating against those most active in the

union.” 826 F.2d at 1502. In the case at hand, as in Amer-

ican Olean, there is no provision in the collective bar-

gaining agreement which requires TWA to reinstate the

economic strikers according to seniority when openings

become available. These Crossovers were not unlawfully

induced by the fact that they believed they would have

a job when the strike terminated—they already had jobs

before the strike. Indeed, the Crossovers were not even

promised the same job that they had before the strike;

they only expected to work where they were needed.* In

3. The Eighth Circuit below cites with approval George

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

1982), cert. denied, 460 U.S. 1082 (1983), which held that the

employer committed an unfair labor practice when it assigned

each crossover the job classification and wage rate held by the

employee before the strike regardless of the company’s produc-

tion requirements on the work actually performed by the em-

ployee during the strike. The case below is distinguishable on

several grounds, including the fact that TWA only offered “a”

job, not the “same” job.

16

some cases the job they received post-strike was less de-

sirable than the job they had before the strike.

The Eighth Circuit’s decision is without support in the

law or underlying policy. The Crossovers had a right to

be reinstated when they offered to return to work, since

there were vacancies which TWA could have filled by hir-

ing new employees. The Crossovers exercised free choice

in returning to work, desiring nothing more than what the

Eighth Circuit has conceded to the new hires: jobs at the

end of the strike. That protection is in accord with the

rulings of this Court and the other Circuits, and acknowl-

edges the proper status of employees who choose not to

engage in concerted activity.

C. Policy Considerations Counsel in Favor of Rec-

ognizing That Crossovers and Permanent Replace-

ments Should Have Equivalent Employment Se-

curity.

The Crossovers made one of the most difficult deci-

sions of their lives when they decided to continue per-

forming their jobs for TWA. The Eighth Circuit’s decision

radically changes the balance of labor relations by de-

priving the Crossovers of free choice. The Crossovers and

newly-hired replacements should be accorded equivalent

status as against the full-term strikers.

What can an employee do if he or she does not want

to support a strike? The Eighth Circuit would say, “Very

little.” If the employee refuses to strike or returns to

work after the strike begins, he or she will be displaced

by senior strikers when the strike ends and will be rehired

only in seniority order. Effectively, the nonstriker will

only be holding a job for a striker.

17

The only alternative for the employee who does not

want to engage in the strike and who, naturally, wants to

continue to work beyond the end of the strike, carries a

totally unacceptable and unreasonable price tag. That

alternative requires the emplcyee to resign his or her posi-

tion with the Company and then reapply in the hope of

being hired as a new employee and permanent replace-

ment. Thus, the price of not striking is the loss of all

seniority and corresponding pay and fringe benefits—the

Hobson's choice noted in Section III(B) above.

The policies cited by the court below in favor of its

decision do not withstand analysis. That court decided

that nonstrikers should not be treated as permanent re-

placements because such treatment would (a) discriminate

among employees on the basis of union activity, (b) induce

employees to abandon the strike, and (c) likely create

long-term conflict and division in the workforce. To re-

spond to these inadequate reasons in reverse order, the

workforce will suffer infinitely greater long-term conflict

and division under the Circuit’s rule when the strike ends

and senior strikers suddenly replace junior nonstrikers and

begin working side-by-side with newly-hired permanent

replacements. The returning strikers’ bitterness and re-

sentment toward the new hires is predictable and the

simultaneous return of a large number of strikers will

greatly increase the tension.

Second, the Circuit does not merely eliminate an

inducement for employees to return to work. Rather, it

eliminates the option for employees to refuse to engage

in concerted activity, drastically penalizing employees

who would dare to exercise their statutory right of re-

fusal.

18

Finally, there was no discrimination against the full-

term strikers on the basis of union activity, but simply

a reinstatement of the Crossovers to vacancies which

existed when they offered to return to work. The full-

term strikers made no such offer to return.

IV. CONCLUSION

The Crossovers urge the Court to reverse the decision

of the Eighth Circuit because it deprives the Crossovers

of their right to refuse to engage in concerted activity

and will force several hundred of the Crossovers out

of their jobs. IFFA and its striking members assumed

the risk of losing the strike; the Eighth Circuit’s decision,

if allowed to stand, would remove all risks to a union

in deciding to strike and allow the union to impose its

will on all employees, even those who do not wish to

strike.

Respectfully submitted,

MarK P. JOHNSON

Counsel of Record

Davip L. WING

Amy L. Peck

of Spencer, FANE, Britt & Browne

1400 Commerce Bank Building

1000 Walnut Street

Kansas City, Missouri 64106-2140

(816) 474-8100

Attorneys for Amicus Curiae,

Crossover Flight Attendants

-

- Ee

19

CERTIFICATE OF SERVICE

I hereby certify that three copies of the foregoing

Motion for Leave to File and Brief of Amicus Curae,

Crossover Flight Attendants in Support of Petitioner,

were mailed by first class mail, postage prepaid, to John

R. Hurley, Esq., 204 West Linwood Blvd., Kansas City,

Missouri 64111, Counsel of Record for Respondent Inde-

pendent Federation of Flight Attendants, and Murray

Gartner, Esq., 300 Park Avenue, New York, New York

10022, and Paul E. Donnelly, Esq., P.O. Box 19251, Kan-

sas City, Missouri 64105, Counsel for Petitioner Trans

World Airlines, this 26th day of May, 1987.