Record and brief — Trans World Airlines, Inc. v. Independent Federation of Flight Attendants
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DOCKET
TS
No. 86-1650-CFX
Status: GRANTED
Docketed:
April 14, 1987
See also:
87-548
Entry Date
1 Apr 14 1987
2 May 15 1987
3 May 19 1987
4 Jun 1 1987
5 Jun 8 1987
7 Jul 15 1987
8 Aug 11 1987
9 Aug 12 1987
10 Aug 12 1987
11 Aug 13 1987
12 Aug 13 1987
14 Aug 19 1987
17 Sep 5 1987
15 Sep 21 1987
16 Sep 21 1987
18 Oct 5 1987
19 Oct 19 1987
20 Nov 20 1987
21 Nov 22 1987
2 Dec 21 1987
23 Jan 12 1988
Title: Trans World Airlines, Inc., Petitioner
Vv.
Independent Federation of Flight Attendants
Court: United States Court of Appeals
for the Eighth Circuit
Counsel for petitioner: Gartner,Murray
Counsel for respondent: Fehr,Steven
Note. Proceedings and Orders
G Petition for writ of certiorari filed.
Briet of respondent in opposition filed.
DISTRIBUTED. June 4, 1987
X Reply brief of petitioner TWA, Inc. filed.
Petition GRANTED.
Pe PEPE PE SCECCCCLCCCLCCCCCCC CAA eee
Order extending time to file brief of petitioner on the
merits until August 13, 1987.
Record filed.
Joint appendix filed.
Brief of petitioner TWA, Inc. filed.
G Motion of Crossover Flight Attendants for leave t2 file
a brief as amicus curiae filed.
G Motion of Some Working TWA Flight Attendants fcr leave
to file a brief as amicus curiae filed.
Order extending time to file brief of respondent on the
merits until October 5, 1987.
Brief of respondent Independent Federation of Flight
Attendants filed.
Motion of Crossover Flight Attendants for leave tc file
& brief as amicus curiae GRANTED.
Motion of Some Working TWA Flight Attendants for leave
to file a brief as amicus curiae GRANTED.
G Motion of American Federation of Labor and Cc
Industrial Organizations, et al. for leave t
brief as amici curiae filed.
Motion of American Federation of Labor and Congress ot
Industrial Organizations, et al. for leave to file a
brief as amici curiae GRANTED.
CIRCULATED.
SET FOR ARGUMENT. Tuesday, January 12, 1988. (irda case).
X Reply brief of petitioner TWA, Inc. filed.
ARGUED.
PETITION
FOR WRIT OF
CERTIORARI
IN THE
Supreme Court of the United
OCTOBER TERM 1986
>_>. —_
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
P.O. Box 19251
Kansas City, Missouri 64105
MARK A. BUCKSTEIN
Of Counsel MICHAEL A. KATZ
Carole O’ Blenes 605 Third Avenue
Kevin Chapman New York, New York 10158
Attorneys for Petitioner
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i
QUESTION PRESENTED
After the stated term of a collective bargaining agree-
ment, and after the parties have been released by the Na-
tional Mediation Board to engage in self-help, does the
Railway Labor Act (unlike the National Labor Relations
Act) mandate that the carrier enforce the union security
provisions of that agreement so as to compel the carrier’s
employees (almost all strike replacements and others who
have resigned union membership) to pay union dues as a
condition of their continued employment?
PARTIES
The petitioner is Trans World Airlines, Inc. (“TWA”), a
“common carrier by air” within the meaning of Title II of
the Railway Labor Act. TWA has no parent company, and
no affiliates or subsidiaries other than wholly owned sub-
‘diari
Respondent, The Independent Federation of Flight At-
tendants (“IFFA”), is an unincorporated labor organization
designated as the bargaining representative under the Rail-
way Labor Act of TWA employees .n the flight attendant
craft or class.
Glenda Lopez-Bruner, Louis Dantuano, Kerry Zesiger,
June Shaw, Nancy King and Georgia Debever, representa-
tives of that class of TWA flight attendants who resigned
their membership in IFFA and crossed IFFA picket lines to
continue or resume working for TWA during a strike by
IFFA against TWA, were granted leave to intervene below
for the purpose of appearing and arguing with respect to
the August 26, 1986 order of the Court of Appeals parti-
ally staying the order of the district court.
TABLE OF CONTENTS
Reasons for Granting the Writ ......................
I. The RLA (Like The NLRA) Neither Requires Nor
Permits Compulsory Union Membership As A
Condition Of Employment Beyond The Stated
Term Of (And Status Quo Period For) The
Collective Agreement By Virtue Of Which That
Compulsion Was Lawful ......................
il. The Decision Below—In Direct Conflict With The
Holding And Rationale Of The Ninth Circuit In
Reeve Aleutian, And At Odds With Decisions Of
The First, Second And Seventh Circuits—
Demonstrates A Compelling Need For Guidance
From This Court Concerning The Proper
Application Of Its Decision In Florida East Coast
SERED .occcccosccseoenseneenbennnl
Ill. Review Should Be Granted To Dispel The
Uncertainty And Instability Engendered By The
Decision Below Throughout The Airline Industry.
Appendix A
Opinion and Judgment of the U.S. Court of
Appeals for the Eighth Circuit .................
Appendix B
Orders of the U.S. Court of Appeals for the
ccc eeceuiccucsoce
Appendix C
Memorandum and Orders of the U.S. District
Court for the Western District of Missouri ......
Appendix D
Text of Statutes Involved......................
Appendix E
Excerpts from the 1981-84 Collective Bargaining
Agreement Between TWA and IFFA............
Appendix F
Complaint for Declaratory Judgment, filed April
Defendant’s Answer to Complaint for Declaratory
Judgment and Counterclaim, filed June 3, 1986. .
Plaintiff’s Answer to Counterclaim for
Declaratory Judgment, filed June 24, 1986......
Appendix G
Excerpts from Stipulations in Civil Action No.
86-6084, CV-SJ-6, filed July 21, 1986...........
PAGE
19a
30a
5Sa
82a
102a
iv
TABLE OF AUTHORITIES
Cases PAGE
AFTRA v. NLRB, 395 F.2d 622 (D.C. Cir. 1968)...... 15
ALPA v. Pan American World Airways, 765 F.2d 377
SG EE ckcodidacasddaukwus waatusnkbasdess 21
ALPA vy. United Air Lines, 802 F.2d 886 (7th Cir.
Nee ee eel ha ee ee eae 16, 19, 23, 27
Anheuser-Busch, Inc. v. Teamsters, Local 822, 584 F.2d
fs 8 er eer rrr ree 14
Bethlehem Steel Co., 136 N.L.R.B. 1500 (1962), aff'd in
pertinent part, 320 F.2d 615 (3d Cir. 1963), cert.
GHEE, FeO Ge Fee es 06s ve cenesenesccwccess 14
Brotherhood of Railway & Steamship Clerks v. Florida
East Coast Railway, 384 U.S. 238 (1966) .......... passim
Brotherhood of Railroad Trainmen v. Jacksonville
Terminal Co., 394 U.S. 369 (1969). ............505. 13, 16
Carpenter Sprinkler Co. v. NLRB, 605 F.2d 60 (2d Cir.
Sea ddis-acecktasdnnce Gcaueeneceusaceasanpneess 15
Communications Workers of America v. NLRB, 215
Pees Ge ee a SE 0-0 cv ccnsendecatesésccsanees 14
EEOC vy. United Air Lines, 755 F.2d 94 (7th Cir.
SE ddctedatdhenenedusdanedunedesdedesesees 17, 19, 23
Ellis v. Railway Clerks, 466 U.S. 435 (1984) .......... 12
Flight Engineers International Ass’n v. Eastern Air
Lines, 359 F.2d 303 (2d Cir. 1966) .............. 16, 21, 27
Hudson Chemical Co., 258 N.L.R.B. 152 (1981) ...... 14
IAM vy. Aloha Airlines, 776 F.2d 812 (9th Cir. 1985) ...22, 27
IAM vy. Northeast Airlines, 536 F.2d 975 (1st Cir.), cert.
CR Ge as Ge CE kWh n 000.6606 66668066488 19, 23
PAGE
IAM vy. Qantas Airways, 122 L.R.R.M. 2263 (N.D. Cal.
IAM vy. Reeve Aleutian Airways, 330 F. Supp. 332 (D.
Alaska 1971), aff'd, 469 F.2d 990 (9th Cir. 1972), cert.
GE, Ge Ss Se nh 0 66 bh db sec caveeutésn passim
IAM v. Street, 367 U.S. 740 (1961) .............0005- 12
Manning v. American Airlines, 329 F.2d 32 (2d Cir.),
cert. denied, 379 U.S. 817 (1964)............ 13, 16, 21, 27
NLRB vy. Haberman Construction Co., 618 F.2d 288
(Sth Cir. 1980), modified on other grounds on reh’g en
banc, 641 F.2d 351 (Sth Cir. Apr. 1981)............. 14, 15
NLRB vy. United Auto Workers, 194 F.2d 698 (7th Cir.
De citedaheseuedias es ceeneseenendeaknnesss 14
NLRB vy. United Auto Workers, 297 F.2d 272 (lst Cir.
Re Pe er ae 14
Peerless Roofing Co., 247 N.L.R.B. 500 (1980),
enforced, 641 F.2d 734 (9th Cir. 1981).............. 14
Railway Employes’ Dep’t v. Hanson, 351 U.S. 225
Dinwecetncedet as oedssneneds bunts duseuetnane 12
Robbins Door & Sash Co., 260 N.L.R.B. 659 (1982)... 14
S. Freedman Electric Co., 256 N.L.R.B. 432 (1981).... 14
Southwestern Steel & Supply, Inc. v. NLRB, 806 F.2d
ee oo cn ceedubeskeababeetnk 14
Trans International Airlines v. IBT, 650 F.2d 949 (9th
Cir. 1980), cert. denied, 449 U.S. 1110 (1981) ....... 8
Western Airlines v. IBT, 55 U.S.L.W. 3676 (U.S. Apr. 2,
Pi chs dnnbdban dhe nneuteudsaeas oobactesntecda 8
vi
PAGE
Statutes
ee na ciccwadenecdeebevntcuseanoes 2
i an andkewsedeebnetssesenseesinwsaes 7
i Ci iecunneechdUewahdneeedécabaeokes 7
tide dieiinidee chabneuoedusena’ 7
National Labor Relations Act
Section 8(a)(3), 29 U.S.C. § 158(a)(3) .........000.. 11, 13
Railway Labor Act
Section 2, First, 45 U.S.C. § 152, First............. 25
Section 2, Fourth, 45 U.S.C. § 152, Fourth ..10, 11, 12, 13
Section 2, Fifth, 45 U.S.C. § 152, Fifth ............ 11, 12
Section 2, Seventh, 45 U.S.C. § 152, Seventh ....... 18
Section 2, Eleventh, 45 U.S.C. § 152, Eleventh..... passim
ED Wy EF We OD Eve cestidecsecdcodescecas 5, 13
EE ll ee a ar passim
Other Authorities
Burgoon, Mediation Under the Railway Labor Act,
National Mediation Board, The Railway Labor Act at
Fe Fe GE TOPE cw ccccvcccccccccecccces 18, 27
Senate Subcommitte on Labor of the Comm. on Labor
and Public Welfare, 93d Cong., 2d Sess., Legislative
History of the Railway Labor Act, as Amended (1926
RE SRE a npgh rey eas ema Sear ea 12
IN THE
Supreme Court of the United States
OCTOBER TERM 1986
No.
eo
TRANS WORLD AIRLINES, INC.,
Petitioner,
Vv.
THE INDEPENDENT FEDERATION
OF FLIGHT ATTENDANTS,
Respondent.
—<j>—_
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
Petitioner Trans World Airlines, Inc. (“TWA”) respectfully
prays that a writ of certiorari issue to review the judgment of
the U.S. Court of Appeals for the Eighth Circuit entered on
January 14, 1987.
OPINIONS BELOW
The opinion and judgment of the U.S. Court of Appeals
for the Eighth Circuit, reported at 809 F.2d 483, 124
L.R.R.M. 2364, are reprinted as Appendix A hereto. They
affirm a memorandum and order of the U.S. District
Court for the Western District of Missouri, reported at 640
F. Supp. 1108, 123 L.R.R.M. 2077, which is reprinted as
Appendix C hereto.
2
JURISDICTION
The judgment of the U.S. Court of Appeals for the
Eighth Circuit was entered on January 14, 1987. This peti-
tion is filed within ninety (90) days of that date. The juris-
diction of this Court to review the judgment on petition
for certiorari rests upon 28 U.S.C. § 1254(1).
STATUTES INVOLVED
The relevant provisions of the Railway Labor Act
(“RLA” or “the Act”), as amended, (45 U.S.C. §§ 151 ef
seq.) and of the National Labor Relations Act (“NLRA”),
as amended, (29 U.S.C. §§ 151 ef seq.) are reprinted as
Appendix D hereto.
STATEMENT OF THE CASE
The decision below attributes to the Railway Labor Act
the startling requirement that strike replacements must pay
dues to the union whose strike they opposed, although the
union never reached a new agreement with the carrier, and
is actively pursuing litigation designed to remove the dues-
payers from their jobs.
Trans World Airlines, Inc. (“TWA”) and the Independent
Federation of Flight Attendants (“IFFA” or “the Union”)
were parties to a collective bargaining agreement with a
stated term from August 1, 1981 to July 31, 1984 (“1981-
84 agreement”). Negotiations for a new agreement began in
March 1984 and proceeded through the steps required by
the RLA, including direct negotiation, mediation and the
final 30-day cooling off period, without success. On March
7, 1986, approximately two years after the negotiations be-
gan, IFFA called a strike against TWA. TWA has operated
since the strike with permanent strike replacements and
with flight attendants employed before the strike began
who crossed IFFA picket lines in order to work.
3
In April, IFFA asserted that the working flight attend-
ants were subject to the union security provisions of the
old agreement, i.e., that they must become members of the
Union and maintain that membership, at least to the extent
of paying initiation fees and monthly dues to the Union,
or lose their jobs. TWA sought a declaratory judgment
that it had no obligation to enforce the union membership
or dues check-off provisions of the 1981-84 agreement
against working flight attendants for the benefit of the
Union. On May 17, 1986, when IFFA offered on behalf of
the striking flight attendants to return to work although no
new agreement had been reached, there were less than 200
vacancies to be filled in the total work force of 4,200.
The court below held that “the national labor policy
enunciated by the Railway Labor Act” (Sa)' requires TWA
to compel over 4,000 flight attendants (nearly all of whom
chose to work during the strike) to pay involuntary dues
to IFFA, as a condition of their continued employment,
even though there is no successor collective agreement. The
court also held that TWA must continue to check-off those
dues, and so assist IFFA in their collection—while IFFA is
free to strike, picket, boycott and engage in other self-help
in support of its bargaining demands and, indeed, to seek
the termination of employment of the very persons re-
quired to pay dues.”
l The pages of the Appendices to this petition are referred to as “__ a.
2 On March 5, 1986, IFFA filed an action (No. 86-6030-CV-SJ-6) in
the U.S. District Court for the Western District of Missouri, alleging
violations by TWA of the Railway Labor Act, including a failure to
exert every reasonable effort to make a new agreement. That action is
currently being tried before Judge Howard F. Sachs, who has ruled
that he will consider in each action pending before him relevant facts
established in the related actions. Claiming that its strike was caused
and/or prolonged by carrier violations of the RLA, IFFA seeks, inter
alia, a return to the status quo conditions in effect on and before
March 6, 1986, the reinstatement of all full-term strikers, and the
displacement of the strike replacements who are, pursuant to the
district court order in this action, presently being required to pay
compulsory dues to IFFA as a condition of their employment.
(footnote continued)
The Controlling Facts
The 1981-84 agreement between TWA and IFFA was by its
terms effective from August 1, 1981 until July 31, 1984 and
subject to renewal thereafter for annual periods “unless written
notice of intended change [was] served in accordance with
Section 6. . . of the Railway Labor Act. . . by either party
. . at least 90 days prior to the renewal date. . . .” (78a)
As authorized by RLA Section 2, Eleventh (45 U.S.C. § 152,
Eleventh), which states that a carrier and a union “shall be
permitted . . . to make [such] agreements,” the 1981-84 agree-
ment contained compulsory union membership and dues
check-off provisions. Under Article 24, each employee in a
classification covered by the agreement was, as a condition of
continued employment, required to pay initiation fees and
monthly dues to IFFA. (66-67a)
Article 24 also obligated TWA, “{djuring the tife of [the]
Agreement,” to deduct the compulsory fees and dues from the
pay of covered employees, provided that the emplovee volun-
tarily executed an “assignmen: and authorization for check-of{
of initiation fees and union dues.” (72-73a) As required by
RLA Section 2, Eleventh, each dues check-off authorization
was to be revocable “after the expiration of one (1) year from
[its execution], or upon the termination date of the applicable
collective bargaining agreement whichever occurs
sooner.” (73a)'
In another action, summary judgment on one count of which is
currently before the Eighth Circuit on cross-appeals (Nos. 86-2197 and
2319), IFFA seeks the reinstatement of full-term strikers (and the
displacement of strike replacements) on other theories, assuming that
IFFA’s strike was an economic one, neither caused nor prolonged by
violations of the RLA. The stipulations attached to this petition as
Appendix G were filed in that action, and were before the district court
and the Court of Appeals when the decisions in this case were issued.
3 ‘The dues check-off authorization form tracked the language of
Section 2, Eleventh, which states that a written assignment of member-
ship dues to a labor organization “shall be revocable in writing after
the expiration of one year or upon the termination date of the
applicable collective agreement, whichever occurs sooner.” Compare 4
U.S.C. § 152, Eleventh (b) with 73a.
5
On February 29, 1984, in accordance with Article 28 of the
agreement, and RLA Section 6 (45 U.S.C. § 156), TWA served
on IFFA a notice of intended change, thereby preventing
automatic renewal of the 1981-84 agreement.‘ On April 27,
1984, IFFA served on TWA its notice of intended change.
Neither party proposed that a new agreement, if and when
reached, contain union membership provisions different from
those contained in Article 24 (A-L) of the 1981-84 agreement.
(88a)
Negotiations continued, through the processes of the Rail-
way Labor Act and under the auspices of the National Media-
tion Board (“NMB”), for nearly two years. Throughout that
period, and after the 1981-84 agreement expired by its terms on
July 31, 1984, both parties were required by RLA Section 6, to
maintain in effect the “rates of pay, rules or working condi-
tions” that existed when the notices of intended change were
served, including the union membership requirement and the
dues check-off procedure. 45 U.S.C. § 156.
On February 4, 1986, no new agreement having been
reached, the NMB released the parties from mediation, and
notified them that the 30-day “cooling off” period mandated
by RLA Section 5, First had begun. (89a) At the end of that
period, IFFA began a strike; TWA then put into effect new
rates of pay and work rules. (90a) On March 7, 1986, in order
to continue operating, TWA began hiring permanent replace-
ments for the striking flight attendants. During the course of
the strike, some 2,800 new flight attendants were hired as
permanent strike replacements, and about 1,280 pre-March 7
flight attendants abandoned the strike and crossed IFFA picket
lines to return to work (or never joined the strike). (113-14a)
4 The full text of the duration clause in Article 28 (entitled “Duration
of Agreement”) is:
Except as otherwise specified in this Agreement, this entire Agree-
ment shall be effective August 1, 1981 [and] shall remain in effect
until July 31, 1984, and thereafter shall renew itself without change
for yearly periods unless written notice of intended change is served
in accordance with Section 6, Title | of the Railway Labor Act, as
amended, by either party hereto, at least 90 days prior to the
renewal date in each year. (78a)
6
Commencement of This Action
On April 11, 1986, when IFFA had been on strike for over a
month and no new agreement had been reached, IFFA asserted
that Article 24 of the 1981-84 agreement remained in effect and
was enforceable against flight attendants working during the
strike. (96-98a) By letter dated April 25, 1986, TWA informed
IFFA that it had no remaining contractual or statutory obliga-
tion to enforce Article 24 of the expired agreement against its
employees for the benefit of IFFA. That letter stated, inter
alia:
It is contrary to all reason to suggest that an expired
agreement requires flight attendants, as a condition of
their continued employment by TWA, to pay dues to
support IFFA’s strike, although they have chosen to work.
IFFA’s position, in other words, appears to be that a flight
attendant who is now working, in order to keep working,
must pay dues to the union which is trying to persuade
that flight attendant to stop working. (100a)
On the same day, TWA filed this action.
In June 1986, TWA moved and IFFA cross-moved for
summary judgment. At the time of the cross-motions, TWA’s
workforce included approximately 4,200 flight attendants:
some 2,800 new flight attendants hired as permanent replace-
ments during the strike; approximately 1,200 pre-March 7
flight attendants who never joined the strike or who aban-
doned it to cross IFFA picket lines and return to work; and
about 200 “full-term strikers” rehired after the end of the
strike. (113-15a) IFFA contended that all these employees must
pay union dues or lose their jobs, although no new agreement
containing a union membership requirement or dues check-off
procedure has been made.
The District Court Decision
The district court granted summary judgment in favor of
IFFA.’ It relied principally on language from this Court's
opinion in Brotherhood of Railway & Steamship Clerks v.
Florida East Coast Railway, 384 U.S. 238 (1966) (“FEC”)—
although acknowledging that FEC “may well” have been
“premised on an assumption of an underlying, existing con-
tract” (36a), rather than an agreement whose stated term had
; . .
Characterizing the questions presented as “sufficiently diffi-
cult . . . to justify reasoning in the alternative” (31a), the
district court first concluded that the Railway Labor Act does
not permit a collective bargaining agreement for a fixed te-m.
In the court’s view, therefore, TWA’s obligation to enforce ihe
union membership requirement survived beyond the statutory
status quo period and into the self-help period, even assuming
that the parties had agreed that the requirement would expire
on July 31, 1984. The court expressly declined to follow the
Ninth Circuit holding directly to the contrary. See /nterna-
tional Association of Machinists v. Reeve Aleutian Airways,
469 F.2d 990 (9th Cir. 1972), cert. denied, 411 U.S. 982 (1973).
Alternatively, and with only slightly shifted emphasis, the
district court read the duration provision of the 1981-84 agree-
ment “harmoniously with the Act so as to create continuing
obligations |beyond its stated term], except as changed in
accordance with § 6 or with supplemental agreements refining
the prescribed procedures.” (40a) So viewed, it concluded,
“partial renewal” of all terms of the agreement not referred to
in the Section 6 notices “seemfed] implied.” (40a) Conse-
quently, according to the court, the union membership and
dues check-off provisions remained in effect as part of what it
described as a “mutilated collective bargaining agreement.”
(39a, n.8)
5 The jurisdiction of the district court was invoked pursuant to 45
U.S.C. §§ 151 et seq., and 28 U.S.C. §§ 1331 and 1337. The court had
jurisdiction under 28 U.S.C. § 2201 to grant the declaratory relief
requested.
The Court of Appeals Decision
The Court of Appeals, also relying principally on language
from this Court’s opinion in FEC, affirmed. It too declined to
follow the holding or rationale of JAM v. Reeve Aleutian
Airways, supra, where the Ninth Circuit held that union
membership and dues check-off provisions (even if not the
subject of a Section 6 notice) do not survive into the self-help
period.
The Eighth Circuit declared it “unnecessary to address
whether or not the RLA permits agreements of fixed dura-
tion.” (18a, n.5) Echoing the district court’s concept of “par-
tial” renewal, however, and in the face of contrary readings by
other Circuits, it concluded that
[t]he contract in question is amendable in accordance with
its provisions and the Railway Labor Act. It does not
wholly terminate, either automatically or upon service of
notice of a limited number of intended changes. The
union security provision continues in effect, * * *. (14-
1Sa)
This construction of the duration clause did not flow from a
reading of the language agreed to by the parties, findings as to
their intent in adopting it, or custom and practice in the airline
industry.° Rather, it resulted from the court’s view that “the
underlying statute . . . requires a construction which empha-
sizes continuity in existing relationships between management
and labor, except where either side has requested a change”
6 Such considerations would be appropriate in a System Board of
Adjustment proceeding which would be necessary if the meaning of the
duration clause were thought to be sufficiently ambiguous to require
construction, since interpretation of contract language under the RLA
presents a “minor dispute” not within the jurisdiction of the courts.
See Western Airlines v. IBT, SS U.S.L.W. 3676 (U.S. Apr. 2, 1987).
TWA moved for summary judgment in this case on the premise that
the duration clause clearly provided for contract termination on service
of a Section 6 notice, as established by all applicable Courts of
Appeals decisions; and arbitration, as a minor dispute, to establish its
meaning is unnecessary because it is not ambiguous. (See Trans
International Airlines v. 1BT, 650 F.2d 949, 964 (9h Cir. 1980), cert.
denied, 449 U.S. 1110 (1981); and 0.15, infra.)
9
and that “the core language of FEC . . . requires stable and
continuing agreements between management and labor.” (15a,
12a; emphasis added) Thus, although eschewing reliance on the
district court’s holding that an agreement for a fixed term is
“unlawful under the RLA” (Sa), the Court of Appeals reached
the same result through an unprecedented construction of the
unambiguous duration clause of the 1981-84 agreement.
The court below thus found a dichotomy in national labor
policy as it relates to union security clauses. It acknowledged
that, under the NLRA, “union security provisions do not
survive expiration of a contract even though provisions govern-
ing terms and conditions of employment generally do survive
expiration of an agreement and may not be changed until the
parties have bargained to impasse.” (16a) It held, however,
that, under the RLA, union security provisions do survive. The
court made no mention of the legislative history of Section 2,
Eleventh (see pp. 12-14, infra), which demonstrates beyond
question that Congress intended rights as to union security
provisions to be the same under the RLA as under the NLRA.
REASONS FOR GRANTING THE WRIT
The decision below is of “major import to labor rela-
tions in the airline industry” (31a) and to the maintenance
of a consistent national labor policy applicable to all in-
dustries. If its unprecedented result is allowed to stand, it
will (i) put the RLA squarely in opposition to the NLRA
in respect of union security clauses, although Congress
clearly intended the same national labor policy on that
subject to apply to both Acts, and (ii) inject a new and
7 The Court of Appeals emphasized that a union membership require-
ment is an “extremely important condition.” (18a) “Clearly,” it said,
“if the Union is to represent the flight attendants, it needs to collect
dues, and enforcement of the check-off provision is integral to that
process.” (17a) The anomaly of compelling the strike replacements to
pay involuntary dues to finance IFFA’s efforts to displace them was
not addressed. Previously, however, when the court below partially
stayed the district court's order (20-21a), it had seemed to acknowledge
that it was questionable to compel the working flight attendants to
support the Union. That stay was vacated by a majority of a different
panel on October 15, 1986. (26-27a)
10
volatile subject into the collective bargaining process that
will surely increase labor strife in the airline industry (i.e.,
the potential need to propose the elimination of union se-
curity clauses in each contract negotiation).
The present decision is predicated on a misapplication of
this Court's decision in FEC; it is in direct conflict with
the decision of the Ninth Circuit in JAM v. Reeve Aleutian
Airways, and it is contrary to decisions of the First, Sec-
ond and Seventh Circuits dealing with fixed term contracts.
The court’s fundamental misconceptions about the frame-
work for collective bargaining established by the RLA,
moreover, will distort the carefully balanced scheme of
freedom and compulsion embodied in the Act and will en-
gender unnecessary disputes, thereby undermining the bar-
gaining process and destabilizing labor relations throughout
the airline industry.
The court below said nothing about “the general policies
of the RLA” (16a) that justifies its disregard of the specific
policies embodied in RLA Section 2, Eleventh.* The insup-
portable consequence of its decision is judicial sanction of
compulsory union membership, as a condition of employ-
ment, in violation of Section 2, Fourth and Eleventh. It
also has an anomalous, and equally insupportable, result:
it permits a union, during a labor dispute that has reached
the stage of Congressionally-sanctioned economic struggle,
8 The question here ts not whether the RLA generally freezes, beyond
the status quo penod, working conditions embodied in a prior agree-
ment and not the subject of a Section 6 notice. It is whether the Union
may lawfully require TWA to force its employees to support the Umon
while TWA has no new agreement with the Union and, therefore.
nenther TWA nor its employees enjoy the labor peace and stability that
Congress clearly envisioned as the guid pro quo for union security
requirements. That question stands apart from the question of what
supplemental bargaiming obhgation, after the end of the status quo
period, TWA may have had as to other provisions of the 1981-84
agreement that ut did not propose to change.
Judging from its comments and speculation about the ~ ‘parade of
horrors’ ” that might flow from acceptance of TWA's position (16-
18a), the court below seems to have lost sight of this fact. Rather, the
court appears to have believed it necessary to enunciate a “rule”
apphcable to aff condinons of employment, without regard to the
umque nature of umon security requirements or the special treatment
atforded them by Congress.
to continue without restriction the exercise of self-help in
an attempt to achieve its bargaining objectives, while deny-
ing the carrier its right to exercise the most modest form
of peaceful self-help—refusal to assist the union in securing
economic support for the union’s self-help efforts.
Consistent national labor policy requires that, unless and
until a new integrated agreement is reached and labor
peace prevails, a union may collect dues only on a volun-
tary basis and without the assistance of dues check-off and
the threat of discharge. Indeed, as the Ninth Circuit cor-
rectly concluded under the RLA over a decade ago, and as
the National Labor Relations Board and the courts have
uniformly concluded under the NLRA, that is what both
the RLA and the NLRA mandate. The court below, hold-
ing to the contrary, flouted the clear Congressional intent
expressed in RLA Section 2, Fourth and Eleventh.
Review by this Court is, therefore, essential in order to
preserve the integrity of the Act and to secure its uniform
judicial administration. Review is, moreover, necessary to
resolve the divergent understandings among the Circuits of
this Court’s decision in FEC and to make clear that FEC
does not require the continuation of union security provi-
sions contained in an agreement for a stated term, after
the expiration of the status quo period.
I. THE RLA (LIKE THE NLRA) NEITHER REQUIRES
NOR PERMITS COMPULSORY UNION MEMBER-
SHIP AS A CONDITION OF EMP* OYMENT, BE-
YOND THE STATED TERM OF (AND STATUS QUO
PERIOD FOR) THE COLLECTIVE AGREEMENT BY
VIRTUE OF WHICH THAT COMPULSION WAS
LAWFUL.
No aspect of national labor policy has received more careful
treatment by Congress and the courts than union membership
requirements. This is so, in large part, because the compulsory
payment of union dues is an interference with otherwise
protected employee rights to refrain from engaging in con-
certed activity (RLA § 2, Fourth and Fifth; NLRA § 8(a)(3))
12
and, at least under the RLA, is “a significant impingement on
First Amendment rights” (Ellis v. Railway Clerks, 466 U.S.
435, 455 (1984)). Nonetheless, Congress has permitted (and the
courts have upheld) such interference—but only in conjunction
with the voluntary collective bargaining agreement that it is
national labor policy to encourage.
As this Court has stated,
[t]he union shop provision of the Railway Labor Act is
only permissive. Congress has not compelled nor required
carriers and employees to enter into union shop agree-
ments. Railway Employes’ Dep’t v. Hanson, 351 U.S.
225, 231 (1956).
Those permissive union shop provisions were enacted by Sec-
tion 2, Eleventh, which is “substantially the same” as the
NLRA provisions. It was added to the RLA in 1951 in order
“to extend to employees and employers subject to the Railway
Labor Act rights now possessed by employees and employers
under the Taft-Hartley Act in industry generally.” Senate Sub-
comm. on Labor of the Comm. on Labor and Public Welfare,
93d Cong., 2d Sess., Legislative History of the Railway Labor
Act, as Amended (1926 through 1966), at 1090, 1106-07, 1120
(1974).”
Subject to certain statutory conditions, RLA Section 2,
Eleventh permits a carrier and a union to make an “agree-
ment” requiring that all employees shall become members of
the union that represents them. It also permits “agreements”
providing for dues check-off, but only upon written authoriza-
tion by the employee—which must be revocable no later than
9 Before 1951, RLA Section 2, Fourth made it unqualifiedly unlawful
for a carrier to “influence or coerce employees in an effort to induce
them to join or remain members of any labor organizations,” to check
off union dues or assessments, or otherwise to assist a union in the
collection of dues. RLA Section 2, Fifth expressly prohibited individ-
ual agreements with employees requiring them to join (or not to join) a
union. JAM vy. Street, 367 U.S. 740, 750-51 (1961).
The Act was amended to relieve unions of the burden of “ ‘free
riders’—ihose employees who obtained the benefits of the unions’
participation in the machinery of the Act without financially support-
ing the unions.” /d. at 761.
13
“the termination date of the applicable collective agreement.”
(45 U.S.C. § 2, Eleventh (b))
Plainly, Congress contemplated and expressly recognized
that, with respect to involuntary payment of union dues, a
contract termination date would be given effect.'’ Continua-
tion of union membership requirements after the stated term
of an agreement, during the status quo period, while the union
is precluded from striking or engaging in other self-help, is
consistent with the purpose of RLA Sections 5, First and 6 “to
prevent rocking of the boat by either side until the procedures
of the Railway Labor Act [have been] exhausted.” Manning v.
American Airlines, 329 F.2d 32, 35 (2d Cir.), cert. denied, 379
U.S. 817 (1964). Once the statutory procedures have been
exhausted, however, and both parties are free to engage in self-
help, there is no warrant in the Act, in national labor policy as
expressed in both the NLRA and the RLA, or in reason and
logic for requiring a carrier to enforce union membership
requirements or dues check-off.
This conclusion is supported by decisions under Section
8(a)(3) of the National Labor Relations Act, which is virtually
identical to RLA § 2, Fourth and Eleventh,'' and which estab-
lishes the rights which were to have been “extend[ed]” to RLA
10 = The 1981-84 agreement reflects that recognition in Article 24(M),
which obligated TWA to deduct initiation fees and monthly member-
ship dues in favor of IFFA only “[djuring the life of this Agreement.”
(72a) The dues check-off form itself expressly permitted revocation of
the check-off authorization by an employee “upon the termination
date” of the agreement. (73a) And, Article 24(B), addressing mainte-
nance of membership by certain employees, refers explicitly to “the
term of this Agreement.” (67a)
11 As this Court recognized, construing the RLA in another context,
“[t]o the extent that there exists today any relevant corpus of ‘national
labor policy,’ it is in the law developed during the more than [50] years
of administering our most comprehensive national labor scheme, the
National Labor Relations Act.” Brotherhood of Railroad Trainmen v.
Jacksonville Terminal Co., 394 U.S. 369, 383 (1969). For that reason,
courts have historically referred to the NLRA for assistance in constru-
ing the Railway Labor Act. Surely, such referral is appropriate—if not
mandated—when the pertinent provisions of the RLA were con-
sciously modeled by Congress on parallel provisions of the NLRA, and
their legislative history confirms that Congress intended to extend to
RLA carriers and unions rights parallel to those available to employers
and unions under the NLRA.
14
parties by § 2, Eleventh. Under the NLRA, union membership
provisions may not be enforced after the term of the agreement
that includes them because the statute is “understood to
prohibit such practices unless they are codified in an existing
collective-bargaining agreement.” Southwestern Steel & Sup-
ply, Inc. v. NLRB, 806 F.2d 1111, 1114 (D.C. Cir. 1986)
(emphasis in original).
The reason for this was long ago spelled out by the National
Labor Relations Board, and endorsed by the U.S. Court of
Appeals for the Third Circuit:
The acquisition and maintenance of union membership
cannot be made a condition of employment except under
a contract which conforms to the proviso to Section
8(a)(3). So long as such a contract is in force, the parties
may, consistent with its union-security provisions, require
union membership as a condition of employment. How-
ever, upon the termination of a union-security contract,
the union-security provisions become inoperative and no
justification remains for either party to the contract
thereafter to impose union-security requirements. Bethle-
hem Steel Co., 136 N.L.R.B. 1500, 1502 (1962), aff'd in
pertinent part, 320 F.2d 615, 619 (3d Cir. 1963), cert.
denied, 375 U.S. 984 (1964).'°
This is so even though, under the NLRA, terms and conditions
of employment generally do survive the expiration of an
agreement, and “an employer may not unilaterally alter, with-
out bargaining to impasse, a contractual term that is a manda-
12 See also, e.g., Southwestern Steel & Supply, Inc. v. NLRB, supra,
806 F.2d at 1113-114; NLRB v. Haberman Construction Co., 618 F.2d
288, 302-03 (Sth Cir. 1980), mod. on other grounds on reh'g en banc,
641 F.2d 351 (Sth Cir. Apr. 1981); Robbins Door & Sash Co., 260
N.L.R.B. 659 (1982); Peerless Roofing Co., 247 N.L.R.B. 500, 505
(1980), enforced, 641 F.2d 734 (9th Cir. 1981); S. Freedman Electric
Co., 256 N.L.R.B. 432, 443 (1981); Hudson Chemical Co., 258
N.L.R.B. 152, 157 (1981); NLRB v. United Auto Workers, 297 F.2d
272, 274-75 (ist Cir. 1961); Communications Workers of America v.
NLRB, 215 F.2d 835, 838-39 (2d Cir. 1954); NLRB v. United Auto
Workers, 194 F.2d 698, 701-02 (7th Cir. 1952); cf. Anheuser-Busch,
Inc. v. Teamsters, Local 822, 584 F.2d 41, 43 (4th Cir. 1978).
15
tory subject of bargaining.” NLRB v. Haberman Construction
Co., supra, 618 F.2d at 302; Carpenter Sprinkler Co. v. NLRB,
605 F.2d 60, 64-65 (2d Cir. 1979); AFTRA v. NLRB, 395 F.2d
622, 624 (D.C. Cir. 1968).
The opinion below includes only a passing reference to RLA
§ 2, Eleventh (15a) and makes no mention whatsoever of its
legislative history. The court did acknowledge one of the many
Circuit Court decisions recognizing that, under the NLRA,
“union security provisions do not survive expiration of a
contract. . . .” (16a) In a strange distortion of this Court’s
reliance in FEC on the “public service nature” of RLA indus-
tries to justify limited departure from existing contracts, how-
ever, the court below concluded that it also compelled
continued enforcement of union security provisions after the
stated term of a contract. And the difference in treatment
under the RLA and NLRA was not explained by reference to
the duration clause of the contract, but by saying that “the
policies enunciated by the Court in FEC rise above any
interpretation . . . of a collective bargaining agreement.” (16a)
(But see pp. 18-19 and 24-26, infra.)' |
For fully forty years, with no apparent detriment to national
labor policy or industrial peace, unions subject to the NLRA
have been carrying out their representational duties during
a hiatus between collective agreements without compulsory
union dues and without the assistance of dues check-off. And,
at least under the First, Second, Seventh and Ninth Circuits’
view of national labor policy (see pp. 19-24, infra), unions in
13 As further justification for applying its “special rule” to umon
membership requirements, and illustrative of the court's misapprehen-
sion of the issues before it, the Eighth Circuit said: “Clearly, if the
Union is to represent the flight attendants, it needs to collect dues, and
enforcement of the check-off provision is integral to that process.”
(17a) No reason is given as to why this is any more “clear” under the
RLA than under the NLRA.
In any event, the court's statement is ironic at best, given that the
effect of its decision is to require working flight attendants to finance
litigation aimed at displacing them from their jobs. (See n.2, supra.)
Even more important, in these particular circumstances, i is an
inversion of legislative intent, for it effectively permits the strikers
(who, judging from the Union's contentions below concerning its
financial condition, are not paying dues (42a)) to be “free-riders.” (See
n.9, supra.)
16
the airline industry have long been required to do the same if—
having voluntarily entered into an agreement for a fixed
term—they choose to pursue a strategy of self-help in support
of their demands for a new agreement, rather than reaching
agreement through the statutory procedures.
Implicit within the statutory scheme is the right of both
parties to a labor dispute, after the statutory procedures have
been exhausted, to “employ the full range of whatever peaceful
economic power they can muster so long as its use conflicts
with no other obligation imposed by federal law.”'* The Act
does not require the employer to continue to assist the union in
securing economic support for its exercise of se!f-help.
Il. THE DECISION BELOW—IN DIRECT CONFLICT
WITH THE HOLDING AND RATIONALE OF THE
NINTH CIRCUIT IN REEVE ALEUTIAN AND AT
ODDS WITH DECISIONS OF THE FIRST, SECOND
AND SEVENTH CIRCUITS—DEMONSTRATES A
COMPELLING NEED FOR GUIDANCE FROM THIS
COURT CONCERNING THE PROPER APPLICA-
TION OF ITS DECISION IN FLORIDA EAST COAST
RAILWAY.
Presented with facts and contract language’ identical in all
material respects, the Eighth Circuit has reached a conclusion
14 Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co..
supra, 394 U.S. at 392.
1S Duration provisions identical in all material respects have been read
by the Second, Seventh and Ninth Circuits as unambiguously creating
not a continuing and merely “amendable” agreement (or a “partially
renewable” agreement), but one that expires by its terms after service
of a Section 6 notice of intended change. Manning v. American
Airlines, 329 F.2d 32, 33 (2d Cir.), cert. denied, 397 U.S. 817 (1964);
FEIA v. Eastern Airlines, 359 F.2d 303 (2d Cir. 1966); IAM v. Reeve
Aleutian Airways, supra, 469 F.2d at 993, ALPA v. United Airlines,
802 F.2d 886, 891 (7th Cir. 1986). Indeed, both the Second and Ninth
Circuits had so ruled at the time the duration provision was first agreed
to by TWA and IFFA in 1978. These decisions of three other Circuit
Courts were dismissed by the Eighth Circuit (10-11a)—with no appar-
(footnote continued )
17
flatly contradictory to that of the Ninth Circuit concerning a
carrier’s obligation, after the end of the statutory status quo
period, to continue in effect union membership and dues
check-off provisions embodied in an agreement for a stated
term.
The conflict has its genesis in divergent understandings of
this Court’s decision in FEC, which involved particular Rules
contained in railroad agreements conceded by all parties to
remain in effect after the status quo period ended. The Ninth
Circuit properly concluded that FEC had no application to
union security provisions in an agreement for a fixed term. 469
F.2d at 993. Misconceiving both the legal premises of FEC and
the controlling facts of this case, the court below misread FEC
as requiring it to construe the 1981-84 agreement between TWA
and IFFA as “continuing” beyond its stated term (12a) and,
therefore, obligating TWA to enforce the union membership
requirement and to continue the dues check-off procedure
after the end of the status quo period.
Review is required to resolve this conflict and to secure the
uniformity of judicial administration that this Court has re-
peatedly declared is essential to national labor policy. Absent
review, carriers and unions can hardly be expected to divine
their respective rights and obligations under a Supreme Court
authority from which lower court judges have drawn such
different conclusions.
‘
ent consideration of their bearing on the parties’ intent in adopting the
duration language of the 1981-84 agreement, or custom and practice in
the airline industry.
The duration clause of the indefinite agreement found by the
Seventh Circuit to be merely “amendable” in EEOC v. United Air
Lines, 755 F.2d 94 (7th Cir. 1985), was substantially different trom that
in the TWA/IFFA agreement. The Seventh Circuit recognized that
distinction when it held that the [AM agreement before it was materi-
ally different from the [AM-Reeve Aleutian agreement found by the
Ninth Circuit to be terminable by service of a Section 6 notice. 755
F.2d at 99 (“There is a difference between providing that a contract
shall lapse at a given date and that after that date it shall be subject to
amendment in accordance with specified procedures.”).
A. FEC: The Act Permits Limited Departures From an
Existing Agreement In Order to Preserve a Carrier's
Right to Self-Help.
In FEC, the Court did not consider whether union member-
ship provisions in an agreement for a fixed term remained in
effect during the self-help period. Rather, it considered whether
a railroad, during a strike, could suspend Rules of its indefinite
term labor contract (which were admittedly still in effect in
accordance with their terms) and were, in fact, the subject of a
pending Section 6 notice as to which the statutory mediation
and status quo procedures had not been exhausted."
Before this Court, the railroad argued that its obligation to
comply with the existing agreements was suspended during the
strike and, therefore, that wholesale depertures from those
agreements were permitted. The unions, supported by the
United States, contended that RLA Section 2, Seventh required
the carrier to operate in strict compliance with the existing
agreements until exhaustion of the statutory procedures as to
every proposed change, and that the unions’ resort to self-help
did not release the railroad from the letter of its statutory
The Court, with a single dissent by Justice White, rejected
both positions and affirmed the Court of Appeals. Emphasiz-
ing that carriers have an affirmative duty to make “reasonable
efforts to maintain the public service at all times” (384 U.S. at
245), it said that, if exhaustion of the statutory procedures
were required as to every strike-related departure from each
rule of existing agreements, “[t}he practical effect . . . would
be to bring the railroad operations to a grinding halt” and
“both the carrier's right of self-help and its duty to operate, if
reasonably possible, might well be academic . . .” (id. at 246).
This Court, in other words, read the RLA to permit departures
from an existing agreement of indefinite duration, in order to
16 ~~ Railroad collective bargaiming agreements typically consist of sepa-
rate and independent “Rules” and provide that cach Rule may be
changed only after service of a Section 6 notice as to that particular
rule. See Burgoon, Medsation Under the Railway Labor Act, National
Mediation Board, The Railway Labor Act at Fifty, 72 (U.S.G.PO.
1w76)
vinaicate the carrier's right of self-help and to permit the
carrier to continue the public service required of it. The Court
said nothing about continuation of provisions in an agreement
for a fixed term, after the term had lapsed. (See EEOC v.
United Air Lines, 755 F.2d at 99 (7th Cir. 1985) and n.15,
supra.)
B. The Conflict Among the Circuits: Divergent Inter
pretations of FEC.
Four Circuit Courts of Appeals have spoken on FEC: the
Ninth Circuit in JAM v. Reeve Aleutian Airways, supra, 469
F.2d 990; the First Circuit in JAM v. Northeast Airlines, 536
F.2d 975 (ist Cir), cert. denied, 429 U.S. 961 (1976); the
Seventh Circuit in EEOC v. United Air Lines, 755 F.2d 94 (7th
Cir. 1985) and in ALPA v. United Air Lines, 802 F.2d 886 (7th
Cir. 1986); and most recently the court below. The lack of
uniformity reflected in these decisions, alone, is sufficient
justification for granting the writ.
1. In JAM vy. Reeve Aleutian Airways, as here, a Section 6
notice had been served; the parties had exhausted the media-
tion and status quo procedures of the RLA without reaching a
new agreement; and the union had struck the carrier. 469 F.2d
at 991-92. There, too, neither party had proposed a change in
the union security provisions of the agreement. Indeed, only
the union had served a Section 6 notice; the carrier “gave no
notice of any intended change” in the agreement. /d. at 991.
When the union discontinued the strike, it requested the
carrier to honor the union security provisions of the agree-
ment; the carrier refused. The union then brought suit for a
declaratory judgment “that the agreement continued in effect
by operation of the Act save as to the provisions which had
been subjected to the Act's procedures.” /d. at 992.
The duration clause before the Ninth Circuit in Reeve
Aleutian was, in all its essentials, the same as that before the
court below:
Reeve Aleutian 1AM Contract
This agreement shall be-
come effective November |,
1966, and shall continue in
full force and effect until
April 1, 1968, and shall
renew itself without change
TWA IFFA Contract
Except as otherwise pro-
vided in this Agreement,
this entire Agreement shall
be effective August 1, 1981
[and] shall remain in effect
until July 31, 1984, and
until each succeeding April thereafter shall renew itself
Ist thereafter, without change for yearly
unless periods
written notice of intended unless
change is served in accord- written notice of intended
ance with Section 6. . . by change is served in accord-
either party hereto at least ance with Section 6. . . by
sixty (60) days prior to either party hereto, at least
April Ist in any year after 90 days prior to the renewal
1967. (469 F.2d at 991) date in each year. (78a)
The district court had held, as a matter of law, that the
collective agreement “expired by its own terms . . . following
. . . notice of proposed modifications in the existing agree-
ment, although [the carrier] was obliged by the [RLA] to
maintain the status quo until the statutory mediation provi-
sions had been exhausted.” 330 F. Supp. 332, 335 (D. Alaska
1971). It also held that the RLA did not operate to extend the
term of the contract:
While certain employee rights, such as pension and retire-
ment benefits may become vested, and hence may retain
their vitality after the expiration of the union contract
which created them, union security and dues check off
provisions are matters of contract between the union and
the employer and consequently do not survive the termi-
nation of the contract. Id. at 335 (emphasis added).
On appeal, the [AM contended that, although the status quo
period had ended, the expired agreement “continued in effect
by operation of the Act” except as to those provisions that had
21
been the subject of a Section 6 notice of proposed change. 469
F.2d at 992. The Ninth Circuit, however, agreed with the
district court's conclusion that the carrier had no obligation,
after the status quo period ended, to enforce the union mem-
bership or dues check-off provisions:
“There is nothing in the Railway Labor Act which extends
a contract beyond its termination date. 45 U.S.C.A. § 156
(1954) merely prohibits any unilateral changes in pay,
rules, and working conditions until the statutory concilia-
tion procedures have been exhausted and the 30-day
mandatory waiting period has expired. . . .
The terms of the agreement called for its termination
on the first day of April following notice by either party
of intended changes. It is irrelevant that [the carrier]
never served notice of any intended changes, and it is of
no consequence that only portions of the contract were
subject to negotiation. The contract expired by its own
terms on April 1, 1968. The only effect of the Railway
Labor Act was to prevent the defendant from making any
unilateral changes in pay, rules, and working conditions
until remedies under the Act had been exhausted... .”
469 F.2d at 992-93 (emphasis in original).
17 The Second Circuit reached essentially the same conclusion in Flight
Engineers International Association +. Eastern Air Lines, 489 F.2d
303, 310 (2d Cir. 1966), where the union sought an order requiring the
carrer to submit to a board of adjustment the claim that replacement
of strikers had violated the parties’ agreement. Agreeing with the
carrier, the Court of Appeals held that after the agreement had expired
by its terms, and the status quo period had ended, there was no
contract to be interpreted and no obligation on the carrier's part to
submit disputes to a System Board.
See also Manning +. American Airlines, supra, 329 2d at 34-35
(effect of Section 6 is to extend only for a “limited period,” /.¢., until
the end of the status quo period, dues check-off agreement that had
“admittedly expired”); ALPA v. Pan American World Airways, 765
F.2d 377, 382 (2d Cir. 1985) (holding that “nothing in the Act, or the
case law interpreting | . . . prevents parties from setting, by freely
negotiated agreement,” the duration of concessions on which they may
reach agreement).
22
With respect to the IAM’s reliance on FEC, the Ninth
Circuit found that decision to have no application to the case
before it because
[FEC] dealt with a contract that had no termination date
and that continued in force until a new contract had been
had
proposed for change or bargained over.” (11a) It said, however,
that it would “not follow the Reeve rationale in this case.”
(3a)
Instead, the Eighth Circuit misapplied to the union security
provisions of the “similar, but not identical contract” the
“special rules” it purported to find in FEC:
18 See also IAM». Aloha Airlines, 776 F.2d 812, 816 (9th Cir, 1985),
1AM +. Qantas Airways, 122 L.R.R.M. 2263 (N.D. Cal. 1985).
19 — After saying that the “core language” of FEC “requ sed” continuity
that it “agree(d] with the district court's construction of the contract ~
(1Sa) That construction rests on a single word (taken out of context)
trom which the court speculated that “ ‘partial renewal seems implied
_ ”” (i4a; emphasis added) Not even addrewed is TWA's explana-
tron that use of the phrase “entire Agreement” was occasioned by the
introduction to the duration provision “Except as otherwise specified
in this Agreement... .~ (78a) (footnote continaed )
23
if a working condition has not been subject to the proce-
dures of the Act, it may not be changed even after
expiration of the status quo period unless truly necessary
for the continued operation of the airline. (16a)
This statement of the “rule” ignored the central fact of FEC,
that the contract there was not for a stated term, and that each
Rule was treated, in the duration clause, as though it were a
separate indefinite contract requiring specific Section 6 notice
of change. It was because the contracts in FEC were unlimited
in duration that the Ninth Circuit in Reeve Aleutian refused to
apply a “rule” such as that announced by the Eighth Circuit to
a contract with a stated term.
3. The First Circuit, citing Reeve Aleutian approvingly, has
agreed with the Ninth Circuit. JAM v. Northeast Airlines,
supra, 536 F.2d at 978 n.2 (“In general, the terms of a Railway
Labor Act collective bargaining agreement are not controlling
after the collective bargaining agreement and any subsequent
status quo period expire.”).
4. The Seventh Circuit, like the Ninth and First Circuits, has
read FEC as “arlising] in a situation where the collective
bargaining agreement was still in effect. . .” and rejected as
“tenuous” a union's reliance on FEC “in a case in which the
collective bargaining agreement had already expired prior to
the strike... .” ALPA v. United Air Lines, supra, 802 F.2d a
898-99, 910.” Suggesting, however, yet a third possible
Apparently recognizing that the language of Article 28 hardly
supports its construction, the court below resorted to extrimsx “ev
dence” of the parties’ intent. (Bur see 0.6, supra.) Under unanimous
authority of other Circuits (n.15, supra), however, the meaning of
Article 28 is clear: all that was required to prevent renewal of the
agreement, was “written notice of intended change.” (78a)
20 = Dicta im an earlier Seventh Circuit decision under the federal Age
Discrimination in Employment Act (29 U.S.C. $6 621 ef seq.) suggests
a differem view of FEC. EBOC v. United Air Lines, 755 F.2d 04, &
(7th Cis. 1985). The panel there, however, assumed, without having to
decide, that Reeve Alewtian was correct, finding the duration clause of
24
conclusion that might be derived from FEC—at least where
some condition of employment other than union security is at
issue and, therefore, RLA § 2, Eleventh does not govern—the
Seventh Circuit noted:
Although [FEC] arose in a situation where the collective
bargaining agreement was still in effect, we see no reason
to depart totally in the post-contract period from its
holding that some showing of a reasonable business justi-
fication is required before a court will allow an employer
to implement self-help measures which, whether inten-
tional or not on their face, undercut the union's ability
protected by the RLA to function as an effective repre-
sentative for its members. /d. at 898-99.
C. The Court Below Misapplied FEC.
in FEC, the Court upheld the authority of the federal courts
to permit a carrier, during a strike, to depart from the terms of
an existing agreement to the extent “reasonably necessary” to
allow the carrier to maintain the public service. 384 U.S. at
248. In that context, the Court's eloquent lecture about the
“spirit” of the Act is not surprising. Because the Court inter
preted the Act as permitting departures from an otherwise
enforceable agreement when the carrier's right of self-help and
the public service were at stake, it emphasized that the carrier
would in any event not be permitted to deviate at will from the
spirit of the Act—which is that existing agreements be hon-
ored. Everything the Court said, however, was premised on the
existence of agreements that all parties conceded were in effect,
in accordance with their terms, during the strike.”
the agreement before it to be materially different from that before the
Nieth Circe m Reeve. (See 0.15, supre.)
2! = The FEC dectssons contain no fewer than a dozen references to the
“cxssting agreements” between the parties. (384 US. 238, 241, 242,
24). 648 F 2d 682, 684, 685, 686, 252 F. Supp. 586, 587, 589) And the
briefs sulbmetted to the Court by all partes repeatedly emphauzed that
those agreements were indefimme and. therefore. m effect when the
(footnote continued)
25
The court below misread FEC by ignoring what this Court
did (and did nor) decide there and by focusing instead on what
it said about its reasons for permitting only limited deviations
from an existing and otherwise enforceable contract. This
Court did not say that labor contracts could not expire by
agreement, or that the spirit of the Act requires the honoring
of expired agreements. Indeed, nothing in the Court's refer-
ence to the “spirit” of the Act suggests, as the court below
concluded, that the Act requires “continuing agreements be-
tween management and labor.” (12a)
Speaking of the unexpired contracts from which the carrier
had been permitted to deviate, this Court said that “[w]ere a
strike to be the occasion for a carrier to tear up and annul, so
to speak, the entire collective bargaining agreement, labor-
management relations would revert to the jungle.” 384 U.S. at
247. The Court did not say that if a contract were allowed to
expire by agreement there would be a reversion to the jungle.
In fact, although carrier and employees are under the continu-
ing obligation of RLA Section 2, First to make every reason-
able effort to reach agreement, the Act does not regard their
failure to do so as a prohibited “jungle” condition. To the
contrary, as the Court fully acknowledged in FEC, the Act
affords the parties the right to self-help if they have not
reached agreement after exhausting the processes of the Act.
384 U.S. at 244.
railroad made the changes before the Court. See, e.g., Consolidated
Brief of Railway Labor Executives Association, 15; Reply Brief of
Association of American Railroads (“AAR”), 2; Brief for the United
States, 24 n.17; Brief of AAR, 26; Brief for the United States, 38-39
n.27; Brief for the United States as Respondent in No. 783, 4; Reply
Brief of AAR, 29; Brief of AAR, 26, reprinted in 98 U.S. Supreme
Court Records and Briefs (Oct. Term 1965).
Toward the end of its opinion, the Eighth Circuit apparently ac-
knowledged that the agreements before the Court in FEC had not
expired by their terms. (18a) At no other point, however, did the
Eighth Circuit make any reference to that critical factual distinction.
Instead, it relied on the “eloquent” language of FEC, which related to
unexpired agreements, to hold that FEC “requires” that an agreement
with a stated term be construed to prevent its expiration.
26
This Court simply had no occasion in FEC to address
whether carriers and unions may, consistent with the policies of
the Act, negotiate a termination date for their agreements,
because the parties there had not in fact done so. Nor was it
called upon to consider whether the spirit of the Act requires
that collective agreements be construed as “continuing” (12a)
even if they are for a specified term; no such agreement was
before the Court. Even more important, given that only union
membership and dues check-off are at issue here, the Court
had no occasion to speak—and did not speak—on the policies
expressed in RLA Section 2, Eleventh or their application to a
contract for a stated term.
In the particular circumstances presented here, it is incorrect
to take out of context, and “emphasize,” as did the court
below, talk of “tear[ing] up . . . the entire collective bargain-
ing agreement” and “rever[sion] to the jungle.” (13a) Enforce-
ment of Article 28 of the agreement between TWA and
IFFA—as written—would no more remit the parties “to the
jungle” than does the NLRA when it treats union security and
dues check-off provisions as solely a product of voluntary
agreement and, therefore, extinct when a contract for a fixed
term expires.
il. REVIEW SHOULD BE GRANTED TO DISPEL THE
UNCERTAINTY AND INSTABILITY ENGENDERED
BY THE DECISION BELOW THROUGHOUT THE
AIRLINE INDUSTRY.
The court below took “judicial notice that labor relations in
the airline industry have entered a different era, one of strife
and turmoil .. . .” (15a) If its decision is allowed to stand,
that statement may well be a self-fulfilling prophecy. Even if
there were no conflict in the Circuits, therefore, review of the
“special rule” applied by te court below to union security
provisions would be warranted because of its potentially broad
and destabilizing effects on labor relations in the airline indus-
try.
27
No matter how salutary the Eighth Circuit believed its so
recently announced rule to be as a general matter, extending
that theory to union membership and dues check-off provi-
sions does not accord with the realities of the bargaining
process or with custom and practice in the airline industry. It is
also clearly at cross-purposes with the Act—which was in-
tended as a mechanism for resolving disputes, not creating
them.
Unlike carriers in the railway industry, air carriers typically
“negotiate complete contracts which expire in their entirety at
an agreed-upon date.”* Common are duration clauses, like
that in the 1981-84 agreement between TWA and IFFA, and
that before the Ninth Circuit in Reeve Aleutian, which specify
a fixed term for the complete contract and provide for auto-
matic renewal for yearly periods, “unless” either party serves a
notice of intended change before the end of the stated term.”
Until now, a carrier has been able to agree to union security
and dues check-off provisions, as part of such an integrated
labor contract, with the knowledge that they would be coexist-
ent with the labor peace that the contract (and any subsequent
Status quo period imposed by statute) represent. It has not
been necessary, when a Section 6 notice of intended change is
served, to inject the sensitive and potentially inflammatory
issues Of union security and dues check-off into the negotia-
tions, by proposing to delete those provisions, if they would be
acceptable to the carrier in a new integrated agreement. Nor
has it been necessary to clutter the bargaining table, or to
divert the parties’ resources and energies from the genuine
issues in the negotiations, by engaging in futile bargaining over
the conditions that will govern in the event of a strike and the
hiring of strike replacements.
22 Burgoon, Mediation Under the Railway Labor Act, National Media-
tion Board, The Railway Labor Act at Fifty, 94 (U.S.G.P.O. 1976).
23 See, e.g., Manning v. American Airlines, supra, 329 F.2d at 33:
FEIA v. Eastern Airlines, supra, 359 F.2d at 310; IAM v. Reeve
Aleutian Airways, supra, 469 F.2d at 993; IAM y. Aloha Airlines,
supra, 776 F.2d at 813; ALPA v. United Air Lines, supra, 802 F.2d at
891.
28
Such a narrowing of the areas of controversy serves to
facilitate voluntary adjustment of disputes and, therefore,
effectuates the purposes of the Act. it does not reflect, and
cannot reasonably be viewed as evidencing, a willingness by the
carrier to accept union security provisions outside the context
of an overall agreement. The Eighth Circuit's decision fails to
recognize these realities.
The effect of the decision below will be to require every
carrier, at the beginning of negotiations, to propose the elimi-
nation of compulsory union membership and dues check-off
provisions. The full implications of such a rule, in an endeavor
where atmospherics are as vital as substance, are difficult to
predict. A proposal to eliminate union security requirements
may inflame the negotiations; it may be used by either party to
justify a failure to reach agreement on other subjects; it may
produce a strike that would not otherwise have occurred.
Plainly, however, requiring such a proposal—as a prerequi-
site to the expiration of union membership requirements—
would at the very least broaden the area of conflict between the
parties, unnecessarily inject sensitive issues into the negotia-
tions, and taint the bargaining atmosphere that the Act seeks
to create. Thus, the “special rule” announced by the Eighth
Circuit to foster collective bargaining would, as applied to
union security provisions, reduce the likelihood of voluntary
adjustment of disputes, thereby frustrating the purposes of the
Act.
CONCLUSION
Th decision below is erroneous as a matter of law and
counterproductive as a matter of industrial relations. If al-
lowed to stand, in direct conflict with decisions of the
Nin.h Circuit and at odds with decisions of the First, Sec-
ond and Seventh Circuits, it will contravene the Congres-
sionally established limitations on union security agreements
expressed in RLA Section 2, Eleventh, undermine the fed-
eral interest in a uniform national labor policy and funda-
mentally disturb the negotiating atmosphere that the Act
29
seeks to create. It will also mean that present TWA em-
ployees will be required to continue to support, against
their will, an organization litigating to remove them from
their jobs, and using their dues for that purpose.
The court below read FEC as imposing “special rules”
against change, when that case actually announces a special
rule for change in existing contracts of indefinite duration,
and has no relevance to contracts that specifically provide
for a fixed term duration.“ This Court has never decided
that, under the RLA, any condition of employment, partic-
ulafly union security clauses, continues in an indefinite sta-
tus quo period after the expiration of the statutory status
quo period. And, in this era of deregulation, review of the
unprecedented decision of the Court below is necessary to
consider whether carriers are to be subjected to those addi-
tional burdens as they struggle to survive in a fiercely com-
petitive economic environment.
This petition for a writ of certiorari to review the deci-
sion of the U.S. Court of Appeals for the Eighth Circuit
should, therefore, be granted.
Respectfully submitted,
MURRAY GARTNER
PAUL E. DONNELLY
MARK A. BUCKSTEIN
MICHAEL A. KATZ
Attorneys for Petitioner
CAROLE O’BLENES
KEVIN CHAPMAN
Of Counsel
April 13, 1987
24 Questions about the meaning of FEC have also been raised in
Burlington Northern Railroad Co. v. Brotherhood of Maintenance of
Way Employees, No. 86-39, now pending before this Court, but they
should more properly be addressed in this case.
APPENDICES
%
APPENDIX A
Opinion and Judgment of the U.S. Court of Appeals
for the Eighth Circuit
UNITED STATES COURT OF APPEALS
Emergency Motion for Stay of Judgment from the United
States District Court for the Western District of Missouri.
Submitted: October 15, 1986
Filed: January 14, 1987
Before Lay, Chief Judge, BRIGHT, Senior Circuit Judge,
2a
On cross motions for summary judgment, the district court’
granted summary judgment in favor of the Union and required
TWA to implement the dues check-off and union security
provisions of the collective bargaining agreement. TWA on this
appeal contends that the agreement has expired and that
therefore it need not implement those provisions of the agree-
ment. For the reasons set forth below, we affirm the summary
judgment in favor of the Union.
1. BACKGROUND
TWA and the Union entered into a collective bargaining
agreement containing the following duration clause:
Except as otherwise specified in this Agreement, this
entire Agreement shall be effective August |, 1981 [and]
shall remain in effect until July 31, 1984 and thereafter
shall renew itself without change for yearly periods unless
written notice of intended change is served in accordance
with Section 6, Title 1 of the Railway Labor Act, as
amended, by either party hereto, at least 90 days prior to
the renewal date in each year.
In 1984, notices of intended change were exchanged by the
parties pursuant to section 6 of the Railway Labor Act (RLA),
45 U.S.C. § 156,’ and the parties proceeded, under the auspic-
es of the National Mediation Board (NMB), through the Act's
mandatory statutory negotiation and mediation procedures. In
January of 1986, TWA refused the NMB's offer pursuant to
! The Honorable Howard J. Sachs, United States District Judge for
the Western District of Missouri.
2 ~—s Section 156 reads:
Carriers and representatives of the employees shall give at least thirty
days’ written notice of an intended change in agreements affecting
rates of pay, rules, or working conditions, and the time and place for
the beginning of conference between the representatives of the parties
imterestec in such intended changes shall be agreed upon within ten
days after the recerpt of said notice, and said tome shall be within the
thirty days provided in the notice In every case where such notice of
3a
section 5 of the RLA, 45 U.S.C. § 155, of binding arbitration.
The parties were released by the NMB and allowed to engage in
self help as of March 7, 1986. On that date, the Union struck
the airline and TWA implemented new working conditions,
including abrogation of the union security and dues check-off
provisions contained in Article 24(A-L) of the agreement.
These provisions were not the subject of a section 6 notice in
which TWA sought changes in the collective bargaining agree-
ment.
On April 17, 1986, TWA filed this action in the district court
seeking declaration that the collective bargaining agreement
had expired and that TWA therefore was not obligated to
observe the union security or related provisions, whether sub-
ject to negotiations or not. On May 17, 1986, the Union ended
the strike and the flight attendants offered to return to work.
Thereafter, on August 1, 1986, the district court ruled on
cross motions for summary judgment determining that TWA is
required to implement the dues check-off and union member-
ship provisions of Article 24 of the collective bargaining
agreement. In its decision, the district court held that the
collective bargaining agreement did not by its terms expire as
to those provisions which had not been subject to reopening by
the parties and that the provisions of the RLA prohibit a
carrier from making a unilateral change in conditions which
were not the subject of a section 6 notice. The district court
rested its decision om both grounds.
mtended change has been given, or conferences are bemg held with
reference thereto, of the services of the Mediation Board have been
requested by either party, or said Board has proffered its serv wes, rates
of pay, rules, or working conditions shall not be altered by the carrier
until the controversy has been finally acted upon, as required by
section 155 of this tithe (45 U.S.C. § 195), by the Mediation Board,
unless a period of ten days has elapsed after termination of confer
ences without request for or proffer of the services of the Mediation
Board
4ssUS.C. 1%
2
z
relationship as to any terms not in dispute. Thus, because the
union security clauses were never sought to be changed by
TWA in its section 6 notice to the Union, those clauses not in
issue, including the union security clause, continue to be
$ ¢
As further ground for its judgment, the district court
strued the durational language that “this entire agreement
* * * shall renew itself without change for yearly periods” to
mean that except for those contract terms subject to reopening,
al! other provisions of the contract remain in effect and control
the rights and obligations of the parties.
TWA brings this appeal, arguing that the collective bargain-
ing agreement has by its own terms expired and that the RLA
does not prohibit the parties from fixing a term for expiration
of the agreement after which time al! provisions of the pre-
are terminated.
TWA, in appealing the adverse judgment, also sought a stay
of enforcement of the union security provisions pending ap-
peal. We granted a partial stay on August 26, 1986, but upon
submission of the case to the panel, on October 15, 1986, the
majority of the panel dissolved that stay. We turn to the merits
of the appeal.
Il. DISCUSSION
The district court stated the issues in the case as follows: (1)
Did Article 28, the duration provision of the contract, cause
parts of the contract that were not subject to bargaining to
continue in effect, or did notice of certain imtended changes
trigger a total termination of the agreement? (2) Assuming the
A. Duration Clause
and, in light of pertinent decisions bearing on the issues.
The RLA was enacted with a number of purposes in mind:
(1) To avoid any interruption to commerce or to the
operation of any carrier engaged therein; (2) to forbid any
limitation upon freedom of association among employees
or any denial, as a condition of employment or otherwise,
of the right of employees to joi a labor organization, (3)
to provide for the complete independence of carriers and
of employees in the matter of self-organization to carry
out the purposes of this chapter; (4) to provide for the
prompt and orderly settlement of all disputes concerning
rates of pay, rules, or working conditions; (5) to provide
for the prompt and orderly settlement of all disputes
growing out of grievances or out of the interpretation or
application of agreements covering rates of pay, rules, or
45 U.S.C. § 1Sla.
To enable the parties to a collective bargaiming agreement to
attain these goals, Congress has established mandatory, and
“almost interminable,” procedures which must be followed in
6a
settling disputes such as exist here. Detroit & Toledo Shore
Line RR. v. United Transp. Union, 996 US. 142, 149 (1969).
Any party secking to make changes in rates of pay, rules or
working conditions of employees must file a notice pursuant to
section 6 of the RLA, 45 U.S.C. § 156, and confer with the
other party. 42 U.S.C. § 152, Sewenth. If the parties are unable
to resolve thew dispute, they may invoke the services of the
NMB or the Board may, in an emergency situation, proffer its
services. 45 U.S.C. § 155, First. If the NMB is unsuccessful in
helping to resolve the dispute, the Board must attempt to
mduce the parties to agree to arbitration. Said arbitration is
not, however, mandatory. /d. If the dispute is not resolved
under these provisions of the Act and the NMB finds the
contact the President of the United States who may set up an
Emergency Board to evaluate the dispute and report to him. 45
U.S.C. § 160. Throughout this period, the parties may not
alter the status quo and no change may be made in those rates
of pay, working conditions or rules which are the subject of the
dispute. It ss only after all statutory procedures have been
exhausted that the parties may engage in self help.
Congress, m enacting these detailed procedures, sought “to
encourage collective bargaming by railroads and their employ-
ees m order to prevent. if possible, wasteful arikes and
mtcrruptions of mterstate commerce.” Detrow & Toledo Shore
Line R.R.. 996 U.S. at 148 (footnote omitted). This detailed
statutory scheme has bargaining as its major thrust. At the
same time, « secks to avoid amy interruption in commerce.
Brotherhood of Railroad Traimmen + Jacksonville Terminal
Co., 3994 U.S. 369, 377-78 (1969). The Act attempts to provide
the parties with every opportunity to resolve their labor dis-
putes through bargaming and negotiation.
The Supreme Court recognized the central role of bargaining
and the continuly of the relatonshup betecen management
and labor in industries subject to the RLA, in holding that
where terms in a collective bargaming agreement have not been
the subject of dispute. those terms continuc to bind the parties.
7a
Brotherhood of Railway & Steamship Clerks, Freight Han-
dlers, Express & Station Employees, AFL-CIO v. Florida East
Coast Ry. Co., 384 U.S. 238 (1966) (FEC). In FEC, during a
strike Over a wage increase and notice requirements prior to
layoffs and job abolition, and after complying with the RLA’s
procedural requirements and entering the self help stage, the
railroad resumed operations with a substantially different la-
bor force with whose members it made individual employment
agreements that were substantially different from the existing
collective bargaining agreements. A number of the changes
made by the railroad had not been the subject of a section 6
notice, nor had they been subject to RLA procedures. The
Supreme Court held that given the public service nature of the
business, id. at 244, and its responsibility to the public to
maintain the public service at all times, id. at 245, the railroad
could
make only such changes as are truly necessary in light of
the inexperience and lack of training of the new labor
force or the lesser number of employees available for the
continued operation. The collective bargaining agreement
remains the norm; the burden is on the carrier to show the
need for any alteration of it, as respects the new and
different ciass of employees that it is required to employ
in order to maintain that continuity of operation that the
law requires of it.
Id. at 248 (emphasis added). The Court further limited this
power to change or revise the collective bargaining agreement
by holding that it must be “closely confined and supervised”
by the courts, id. at 246, recognizing that
[t}hese collective bargaining agreements are the product of
years of struggle and negotiation; they represent the rules
governing the community of striking employees and the
carrier. That community is not destroyed by the strike, as
the strike represents only an interruption in the continuity
of the relation. Were a strike to be the occasion for a
carrier to tear up and annul, so to speak, the entire
collective bargaining agreement, labor-management rela-
8a
tions would revert to the jungle. A carrier could then use
the occasion of a strike over a simple wage and hour
dispute to make sweeping changes in its work-rules so as
to permit operation on terms which could not conceivably
have been obtained through negotiation. Having made
such changes, a carrier might well have little incentive to
reach a settlement of the dispute that led to the strike. It
might indeed have a strong reason to prolong the strike
and even break the union. The temptation might be
strong to precipitate a strike in order to permit the carrier
to abrogate the entire collective bargaining agreement on
terms most favorable to it. The processes of bargaining
and mediation called for by the Act would indeed become
a sham if a carrier could unilaterally achieve what the Act
requires be done by the other orderly procedures.
Id. at 246-47 (footnote omitted).
The Supreme Court thus recognized that bargaining is cen-
tral to the RLA and that even the existence of a strike does not
empower management to annul those terms of the collective
bargaining agreement that had not been subject to prior
bargaining.
The very words of TWA’s reopener notice amply demon-
strates that TWA itself has recognized the limited nature of its
reopening of the collective bargaining agreement and that a
notice to change is not a notice to terminate the agreement in
the event an impasse is reached is strongly evidenced by the
very words of TWA’s reopener notice. In its letter of February
29, 1984, TWA proposed eliminating certain items of compen-
sation, amending certain articles relating to expenses, credits
and bidding procedures, and modifying certain other proce-
dures. In its conclusion, TWA reserved the right to propose
further “additions, deletions, modifications or other changes
in the agreement * * *”. Letter from J. W. Hoar, Director/
Technical & Contract Liaison, TWA, to Art»r Teolis, Presi-
dent, The Independent Federation of Flight Attendants (Feb.
29, 1984), in Affidavit of Counsel Attaching Certain Pertinent
Portions of the District Court Record, Exhibit 3, Affidavit of
William A. Jolley (Aug. 20, 1986). Nowhere does TWA suggest
9a
that failure to reach an accord would terminate the balance of
the terms and provisions of the agreement.
Further, the affidavit of William A. Jolley clarifies the
understanding of the parties as to the continuity of the terms
of the collective bargaining agreement, including those terms
not reopened. That affidavit, which is undisputed, states in
part:
3. Since April 1, 1977 and continuing to date I have
had numerous discussions with various TWA officials and
representatives concerning interpretation of terms of the
collective bargaining agreement, grievance handling, arbi-
trations and in the course of numerous collective bargain-
ing negotiations sessions. At no time prior to receipt of an
April 25, 1986 letter signed by J.W. Hoar have I ever
heard any such official or representative of TWA refer to
an “expiration” date of the collective bargaining agree-
ment or speak in terms of that agreement “expiring” or
“terminating” or in any other way suggesting or implying
that on or after March 7, 1986, TWA could or have the
right to unilaterally implement or change terms of condi-
tions of employment other than those which had been
subject to Section 6 Notices and made the subject of
collective bargaining. On the contrary, since April 1, 1977
and until April 25, 1986, TWA officials and representa-
tives referred to the “amendable” date of the Agreement
and spoke in terms of that Agreement “becoming amend-
able.”
Affidavit of Counsel Attaching Certain Pertinent Portions of
the District Court Record, Exhibit 3, Affidavit of William A.
Jolley (Aug. 20, 1986).
TWA, in its claim that it is no longer bound by the union
security clause, or indeed any other provision of the collective
bargaining agreement, asserts that the contract came to a
complete termination when the parties reached an impasse in
their bargaining. Therefore, because the self help period has
ended with the formal ending of the strike, TWA can disregard
any provision of the previous collective bargaining agreement.
TWA contends that the duration clauses analyzed by the
10a
Second, Seventh and Ninth Circuits support its view that the
contract terms of an airline’s collective bargaining agreement
can expire and, comparing the present duration clause with
those in other contracts, there exists no reasonable basis for
concluding that the TWA-Union contract in issue here has not
expired.
TWA relies principally on EEOC v. United Airlines, 755 F.2d
94 (7th Cir. 1985); JAM v. Reeve Aleutian Airways, 469 F.2d
990 (9th Cir. 1972); Flight Eng’r Int’l Ass'n, EAL Chapter v.
Eastern Airlines, 359 F.2d 303 (2d Cir. 1966); and Manning v.
American Airlines, 329 F.2d 32 (2d Cir. 1964). In further
support of the Reeve case, TWA cites /AM v. Aloha Airlines,
776 F.2d 812 (9th Cir. 1985) and JAM v. Quantas Airways, 122
L.R.R.M. 2263 (N.D. Cal. 1985).
In our view, EEOC v. United Airlines, decided by the
Seventh Circuit, does not support TWA’s position. Indeed,
Judge Posner’s opinion seems to reject the central thesis of
TWA’s analysis in construing the duration clause at issue there
as creating an amendable, not a terminable, contract. Nor Coes
the Second Circuit’s opinion in Manning support TWA’s posi-
tion. Manning dealt with a dues check-off agreement that was
specifically excluded from the contract's automatic renewal
clause. The Second Circuit held that the check-off provision
was a “working condition” within the meaning of section 6 of
the RLA, thus coming within the status quo provisions of
section 6. The clause, therefore, could not be unilaterally
abrogated by the airline. In Manning, the parties agreed that
the check-off provision expired on April 30, 1963, and that the
provision did not come within the general renewal provision of
the contract. Nevertheless, the provision remained in effect
subject to the application of section 6 of the RLA, requiring
written notice of change, bargaining and mediation. The Man-
ning court at no time addressed whether or not contract terms
not subject to reopening and bargaining would automatically
expire on impasse.
Two other Second Circuit cases cited by appellant are not
especially revealing. In Air Cargo Inc. v. Local Union 851, 733
F.2d 241 (2d Cir. 1984), the court considered and decided that
the status quo provisions of section 6 required that the union
maintain the actual working conditions of an organization
performing work for an air carrier. While the court referred to
the expiration of the agreement in that case, the discussion
does not indicate that the contract between the union and the
employer contained a duration clause providing for automatic
renewal as in the airline contract at issue here. TWA’s citation
of the Eastern Airlines case is equally without persuasive
effect. Nowhere in that opinion does the Second Circuit discuss
the precise issue before us even though that court agreed with
the trial court that the underlying collective bargaining agree-
ment between the parties had terminated. That case concerns
itself with issues that were the subject of much controversy
among the parties and over which the parties had engaged in
sustained bargaining and mediation. The case does not deal
with provisions of the contract which were not in dispute.
Moreover, the Eastern Airlines opinion does not discuss the
policy considerations cited in FEC, inasmuch as it predates
FEC.’ Thus, TWA’s position that on impasse all provisions of
the collective bargaining agreement terminate rests essentially
on a comparison of the duration clause in the instant litigation
with that at issue in Reeve and the acceptability of Reeve as
persuasive authority here.
The Reeve case and its progeny, including A’oha and
Quantas, directly hold that airline contracts similar, but not
identical, to the TWA contract here in issue come to an end
upon impasse and, following a strike and self help period, the
airline employer may change those working conditions which
had not been proposed for change or bargained over. The
agreement in Reeve read:
This agreement shall become effective November 1,
1966, and shall continue in full force and effect urtil
April 1, 1968, and shall renew itself without change until
3 Both sides seem to derive some comfort from Aw Line Pilots Ass'n
Int'l v. United Air Lines, Nos. 85-2726 and 85-2833 (7th Cir. Sept. 29, 1986).
This case does not cast much light on the issue before us but at least in theory
seems to support the union's position. The issue in that case focused on the
court's obligation “to ascertain whether the various self-help measures
employed by both United and ALPA unlawfully impinged upon statutory
protections provided under the RLA.” /d., slip op. at 15.
2a
each succeeding April Ist thereafter, unless written notice
of intended change is served in accordance with Section 6,
Title 1, of the Railway Labor Act, as amended, by either
party hereto at least sixty (60) days prior to April Ist in
any year after 1967.
469 F.2d at 991. The opinion in the Ninth Circuit quotes and
affirms the district court's statement that:
The terms of the agreement called for its termination
on the first day of April foisowing notice by either party
of intended changes. It is irrelevant that the defendant
[Company] never served notice of any intended changes,
and it is of no consequence that only portions of the
contract were subject to negotiation. The contract expired
by its own terms on April |, 1968.
Id. at 992-93.
An examination of the district court opinion s&ggests that
the parties did not present the issue of contract interpretation
to the district court, for its opinion stated that “[t}he sole issue
presented is whether the Railway Labor Act, 45 U.S.C.A.
§ 151 ef seq., has the effect of extending a collective bargaining
agreement beyond the termination date specified in the agree-
ment.” 330 F. Supp. 332, 333-34 (D. Alaska 1971). Moreover,
the district court’s discussion indicates that the union predi-
cated its claim for relief solely on the FEC case, not on the
contract terms. /d. at 334. The district court distinguished FEC
on grounds that FEC related to unexpired agreements. The
district court, without citation to any authority in cases under
the RLA, stated “[a}]s a matter of law, the contract expired by
its own terms * * *.” Jd. at 335.
Neither the district court opinion nor the Ninth Circuit
opinion in Reeve gives any detailed consideration to construc-
tion of the renewal clause in a manner consistent with the
policies of the RLA and the core language of FEC that requires
stable and continuing agreements between management and
labor.* We emphasize that core language in FEC:
4 We note that Reeve relied on Eastern Airlines which, as we have
observed, antedated FEC.
13a
These collective bargaining agreements are the product of
years of struggle and negotiation; they represent the rules
governing the community of striking employees and the
carrier. That community is not destroyed by the strike, as
the strike represents only an interruption in the continuity
of the relation. Were a strike to be the occasion for a
carrier to tear up and annul, so to speak, the entire
collective bargaining agreement, labor-management rela-
tions would revert to the jungle.
384 U.S. at 246-47 (footnote omitted). Moreover, the Ninth
Circuit opinion gives no consideration to what the Supreme
Court referred to as the spirit of the Act:
While the carrier has the duty to make all reasonable
efforts to continue its operations during a strike, its
power to ake new terms and conditions governing the
new labor force is strictly confined, if the spirit of the
Railway Labor Act is to be honored.
Id. at 247 (footnote omitted).
We will not follow the Reeve rationale in this case.
The district court noted in the present case that as to
contract interpretation, the Reeve case is subject to question—
realistically, the July 31, 1984 date is not a termination date at
all but it is a date that serves as a measuring point for the
ninety-day notice required prior to the making of intended
changes to the contract. On this issue of contract interpreta-
tion, District Judge Sachs wrote further:
In EEOC v. United Air Lines, Inc., 755 F.2d 94 (7th
Cir. 1985), Judge Posner avoided a ruling flatly disap-
proving of the Reeve decision, 469 F.2d 993 [sic], by
construing the duration clause in the airline contract
before him as creating an amendable rather than a termi-
nable contract. The language under consideration speci-
fied that the agreement “shall remain in full force and
effect through November |, 1978, and thereafter shall be
subject to change by service of a notice as provided for in
Section 6” of the Railway Labor Act. 755 F.2d at 97.
Although the district court had concluded that the con-
Except as otherwise specified in this Agreement, this
entire Agreement shall be effective August 1, 1981
{and} shall remain in effect until July 31, 1984, and
thereafter shall renew itself without change for
yearly periods unless written notice of intended
change is served in accordance with Section6. . . of
the Railway Labor Act by either party hereto, at
least 90 days prior to the renewal date in each year.
This language shows that a ‘otal renewal occurs if no
notice is received. As in EEOC, there is no express
language terminating the agreement in the event of a
notice of intended change. While the notice prevents total
renewal, nothing in the wording prevents partial renewal.
On the contrary, partial renewal seems implied in the
language preventing renewal of the “entire” agreement.
The reference to the “entire” contract is useless, by the
TWA interpretation, and merely serves as emphasis. It 1s
more likely that it has an operative purpose, distinguish-
ing between all or paris of the agreement. The language
appears to create an amendabie contract, as in EEOC,
with prospective changes limited to the subject matter of
the notice (footnote omitted).
Judge Sachs concluded:
The contract in question is amendable in accordance
with its provisions and the Railway Labor Act. It does not
wholly terminate, either automatically or upon service of
Sa
notice of a limited number of intended changes. The
union security provision continues in effect, * * *.
We agree with the district court's construction of the con-
tract.
The RLA, in its application to the airlines and to this
contract, which has a forty-year history, represents a day when
stability in labor relations represented the norm in the public
transportation industries. While we take judicial notice that
labor relations in the airline industry have entered a different
era, one of strife ard turmoil resulting from deregulation and
takeovers by “corporate raiders,” the underlying statute and
the contract language that was written in a manner consistent
with the RLA still requires a construction which emphasizes
continuity in existing relationships between management and
labor, except where either side has requested a change. In the
latter event, the proposed change must be the subject of
B. Dues Check-Off Provision
TWA argues that a dues check-off provision is purely a
creature of contract and thus is of a special nature such that
once the parties have bargained to impasse over any disputed
provisions in the agreement, nothing in the RLA requires
continuation of the check-off provision in the absence of an
As both parties agree, a dues check-off provision is purely a
creature of contract. Section 2, Eleventh, of the RLA allows
inclusion of such a clause in collective agreements and, as TWA
concedes, continuation of the provision through the status quo
period is consistent with the policies reflected in section 6 of
the RLA. TWA, however, contends that once all statutory
procedures have been exhausted, no purpose of the RLA is
served by continuing the dues check-off provision in effect, as
such regulation of the relationship between the union and its
members is lawful only by virtue of the collective agreement.
TWA supports this argument by reference to NLRB ¥.
Haberman Constr. Co., 618 F.2d 288, 302-03 0.16 (Sth Cir.
1980), modified on other grounds, 64\ F.2d 351 (Sth Cir. 1981),
a case arising under the National Labor Relations Act
(NLRA). There the Fifth Circuit recognized that union security
provisions do not survive expiration of a contract even though
provisions governing terms and conditions of employment
generally do survive expiration of an agreement and may not
be changed until the parties have bargained to impasse.
Haberman, however, is not persuasive. The Fifth Circuit
reviewed a contract governed by the NLRA and therefore did
not discuss FEC or the general policies of the RLA. While
cases under the NLRA may be instructive, the contract at issue
here is under the RLA and must be evaluated in light of its
policies, which are in some respects unique to the RLA and
those industries subject to its provisions. As the Supreme
Court recognized in FEC, supra, the importance of the indus-
try’s public service nature, and its responsibility to maintain
that service, warrants special rules. One of those rules is that if
a working condition has not been subject to the procedures of
the Act, it may not be changed even after expiration of the
status quo period unless truly necessary for the continued
operation of the airline. FEC, 984 1S. at 248.
In Cox v. Northwest Airlises, 319 © Supp. 92 (D. Minn.
1970), the district court empteized the importance of FEC to
the maintenance of labor relations unméer the RLA and noted
that the policies enunciated by the Court in FEC rise above any
interpretation of the language of a collective bargaining agree-
ment:
[T]he arguments advanced by the [FEC] Court for pro-
tecting the integrity of the collective bargaining agreement
and the parade of horrors which the Court feels would
result from a failure to do so, are not dependent upon or
affected in any manner by an interpretation of the * * *
collective bargaining agreement. That this is quite clearly
the case is emphasized by the fact that the court clearly
held that Section 2 Seventh does not apply during a strike
and relied upon the overall thrust of the Railway Labor
7a
Act as a rationale for limiting departure from the terms of
the collective bargaining agreement. The Court said:
“[The carrier's] power to make new terms and conditions
governing the new labor force is strictly confined, if the
spirit of the Railway Labor Act is to be honored.” It can
hardly be seriously asserted that the “spirit” of the Act is
determined by language selected by the drafismen of
* * * clauses in collective bargaining agreements.
Id. at 98 (footnote omitted). We agree.
TWA does not dispute that the Union remains the recognized
collective bargaining agent for the flight attendants. Clearly, if
the Union is to represent the flight attendants, it needs to
collect dues, and enforcement of the check-off provision is
integral to that process. Moreover, dues check-off is recognized
as a working condition under the RLA. Manning, 329 F.2d at
34-35. Because the contract at issue here continues in effect as
to provisions other than those subject to notice of intended
change, no reason exists for automatic abrogation of the
check-off provision upon the parties reaching an impasse. The
provision was never reopened as a subject for bargaining; nor
has TWA demonstrated how its termination is necessary to
TWA’s continued operation. While we recognize that there are
existing disputes between various employees, ¢.g., over the
seniority rights of cross-over employees as opposed to newly
hired employees, these are not concerns of TWA but are for the
union to deal with in carrying out its responsibility to represent
all umion members.
Ill. CONCLUSION
In sum, to read the duration clause in the manner TWA
suggests would completely undermine the collective bargaining
nature of the Act. The only way to effectively achieve the goals
of the Railway Labor Act is to require the parties to negotiate
and mediate over those changes they wish to make. The TWA.
Union duration clause was written to facilitate such negotia-
tion and mediation. It is not for this court to rewrite the clause
in the way TWA now wishes it was written, and to do so in this
case would cut out the very heart of the Railway Labor Act—
collective bargaining.
In light of our holding that the agreement at issue has not
expired,’ the Supreme Court's decision in FEC is controlling
here. As discussed above, TWA may only make those changes
“as are truly necessary in light of the inexperience and lack of
training of the new labor force or the lesser number of
employees available for the continued operation” of the air
S.
issue here which leads this court to conclude that the partics
imended a result so at odds with the RLA. Against this
backdrop, we believe the district court correctly decided the
effect of the duration clause.
Affirmed.
A true copy.
Attest:
Cierk, U. 8. Court of Appeals, Eighth Circuit.
; In vvee of our holding that the terms of the collective barganmung
agreement not reopened still remam im effect. « m unmecewary for us to
address whether or not the RL A permits agreements of fived duration
APPENDIX B
Orders of the U.S. Court of Appeals for the Eighth Circuit
UNITED STATES COURT OF APPEALS
For THE Bronte Crecurr
No. 8-1998WM
—_ —~<+>___
TRANS WORLD AIRLINES, INC,
Appetiant.
—vVs. —
THE INDEPENDENT PEDERATION OF FLIGHT ATTENDANTS,
Appellee
<>
Appeal from the United States District Court
for the Western District of Missouri.
The motion of appellant filed August 7, 1986, for a stay of
the memorandunr and orders of the district court dated August
1, 1986, and August 8, 1986, is granted. The stay hereby
granted shall remain in effect until at least August 26, 1986,
and thereafter under further order of the court.
The court orders the parties to appear for oral argument at
the United States Courthouse in St. Louis at one o'clock p.m.
on August 26, 1986, to present arguments as to whether this
stay should be continued during the appeal of the case on the
merits. The case shall be expedited by the Clerk for hearing on
the merits for the October 1986 session of this court in St.
Paul, Minnesota.
The court sees no need for further briefs at thes time unless
the TWA flight attendants currently working for TWA wish to
file a statement of thei views on this case enther as individuals
or as a group, in which case short memorandums not to exceed
five pages may be accepted by the Clerk of this court up to and
including August 22, 1986.
August 14, 1986
UNITED STATES COURT OF APPEALS
For THe Esourn Crecurr
No. &-1998™W™M
oe
TRANS WoRip Amines, INC...
Appetian:.
— Ne
THE INDEPENDENT FEDERATION OF FLIGHT ATTENDANTS,
Appetiee
——
Appeal from the Laned States District Court
for the Western District of Missouri.
Before Ross and Wor. Man, Circuit Jedges,
and Bart, Semor Circa Judge.
datc and granted summar, judgment to the defendants,
pendent Federation of Flight Anendants. On August
thes Court entered an order staying Judge Sachs’s order
August 26, 1986, when the arguments of counse! could be
heard
Lpon comuderation of all the documents which have been
trled to date and the oral arguments, the Court now modifies
the way as follows: TWA shall follow the order of Judge Sachs
as set forth m hes order of August |, 1986, with the following
rs
bgt
2la
exceptions: All initiation fees and dues collected from persons
now working as flight attendants for TWA who were not
working as flight attendants for TWA on the date of the strike,
March 7, 1986, shall be placed with a corporate trustee to be
agreed upon by the parties, with interest, pending the final
resolution of this case by this Court after the case is heard on
its merits at the October 1986 session of this Court in St. Paul.
If the parties cannot agree on a corporate trustee, Judge Sachs
shall appoint such trustee.
Hearing of this case shall be set for Wednesday, October 15,
1986, in St. Paul, Minnesota, before this panel of the Court.
Additional briefs not to exceed 25 pages from each of the
litigants will be accepted by the Court pursuant to scheduling
arranged by the clerk’s office. An amicus brief not to exceed
20 pages from the “new hires” among the current flight
attendants will be permitted.
DATED this 26th Day of August, 1986.
22a
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 86-1998
i
TRANS WORLD AIRLINES, INC.,
7 Appellant,
—_—V—
THE INDEPENDENT FEDERATION OF FLIGHT ATTENDANTS,
Appellee.
——
Appeal from the United States District Court
for the Western District of Missouri.
Filed: September 25, 1986
ORDER
The appellee is directed to respond to the motion of Glenda
Lopez-Bruner, et al. on or before September 29, 1986. Such
response shall be filed with the clerk of this -court with
duplicate copies delivered to the following judges:
The Hon. Donald P. Lay
Chief Judge
P.O. Box 75098
St. Paul, MN 55175
The Hon. Myron H. Bright
U.S. Senior Circuit Judge
P.O. Box 2707
Fargo, ND 58108
The Hon. Roger L. Wollman
U.S. Circuit Judge
212 Federal Building
Pierre, SD 57501
23a
Pending ruling on the pending motion, TWA shall pay any
moneys checked off from the cross-over employees to the same
corporate trustee as selected under this court's order of August
26, 1986, to be held at interest and in escrow until the further
order of this court.
A true copy.
ATTEST:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
24a
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 86-1998WM
_———_——_<4>—___——__
TRANS WORLD AIRLINES, INC.,
Appellant,
—vs.—
THE INTERNATIONAL FEDERATION OF FLIGHT ATTENDANTS,
Appellee.
—_—__—__~+>___——_-
Appeal from the United States District Court
for the Western District of Missouri.
In order to maintain the status quo until this Court is able to
consider the various pending motions for modification or
clarification of this Court's partial stay order of August 26,
1986, the Court directs that any cross-over employee who
claims to have resigned from the union, instead of paying dues
to the union, may pay current or delinquent dues to the
corporate trustee serving under this Court's order of August
26, 1986, to be held at interest and in escrow by said trustee,
subject to the further order and direction of this Court.
Such payment, by any such cross-over employee, shall be
deemed payment of union dues by said employee pursuant to
the preexisting collective bargaining agreement between TWA
and IFFA for the purpose of avoiding the employee's discharge
for nonpayment of dues—provided such payment or payments
be timely made.
This order remains in force until the hearing on said motions
at 8:30 a.m., Wednesday, October 15, 1986, in St. Paul,
Minnesota, and, unless specifically extended, will expire at
$:00 p.m. that date.
7 ae
2Sa
The emergency partial stays embodied in this Court’s order
of September 25, 1986 (payments of checked-off dues of cross-
over employees) will also expire at 5:00 p.m., October 15,
1986, unless specifically extended by the Court.
October 7, 1986
26a
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 86-1998WM
———_—_
TRANS WORLD AIRLINES, INC.,
Appellant,
—VN
THE INDEPENDENT FEDERATION OF FLIGHT ATTENDANTS,
Appellee.
——
Appeal from the United States District Court
for the Western District of Missouri.
Before, Lay, Chief Judge, BRiGHt, Senior Circuit Judge,
and WOLLMAN, Circuit Judge.
ORDER OF THE COURT
Upon hearing and considering the pending motions for
modification or clarifications of the partial stay order of
August 26, 1986, it is ordered that said motions are denied.
This court has this day heard the parties’ arguments on the
merits of the appeal by Trans World Airlines, Inc. and has the
appeal under consideration. Pending disposition of the merits,
the majority of the court is of the view that the partial stay
order dated August 26, 1986 should be and is herewith dis-
solved forthwith.
The corporate trustee is ordered and directed forthwith to
pay to The Independent Federation of Flight Attendants
(Union) any funds from Trans World Airlines employees now
held in escrow or which may be received by the trustee to hold
in escrow pursuant to this court's partial stay orders of August
27a
26, September 25, and October 7, 1986. Pending further order
of this court, all union dues and agency fees of flight atten-
dants of Trans World Airlines shail be paid directly to the
Union.
This court will endeavor to file its opinion on the merits in
not more than thirty days from this date.
A true copy.
ATTEST:
/s/ Ropert D. St. [ILLEGIBLE]
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
October 15, 1986
28a
No. 86-1998
——_<>____—__
TRANS WoRLD Ali ives, INC.
Appellant,
i
THE INDEPENDENT FEDERATION OF FLIGHT ATTENDANTS,
Appellee.
GLENDA Lort7-Bri eR, ef af.
Intervenor Appellant
———_~—+>__ ——_
Appeal from the United States District Court
for the Western District of Missouri.
Submited: October 15, 1986
Filed: January 14, 1987
Before Lav, Chief Judge, BRIGHT, Senior Circuit Judee.
and Woii MAN, Circuit Judge
ORDER
The moron of Glenda Lopez-Bruner, et af. to intervene was
heard by # peel of this Court on October 14. 1986. Mov ants.
a represemiatives of that class of Trans World Airlines. Inc
(TWA) employees who have resigned ther membership in the
Independent Federation of Flight Attendants and crowed the
picket lines to continue working for TWA, seck leave only to
imicrvene to secure 4 modification of this Court's August 26.
1984, partial stay order. They do not seck leave to intervene on
the merits of TWA's appeal. This Court denied their motion to
modify the partial stay order by order dated October 14 1986.
and im that same order dissolved the August 26, 1986. «a
order pending disposition of this case on the merits We
Clerk, U.S. Court OF APPrALs, ErontH Crecurt.
APPENDIX ©
Memorandum and Orders of the U.S. District Court
for the Western District of Missouri
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MissouR!
St. Josern Division
No. 86-6059-CV-SJ-6
re
TRANS WORLD AIRLINES,
Plaintiff,
—¥ —
THE INDEPENDENT FEDERATION OF FLIGHT ATTENDANTS,
Defendant.
—
MEMORANDUM AND ORDER
Trans World Airlines (TWA) has filed suit to determine
whether the union security clause in a collective bargaining
agreement survives into the self-help period after an impasse in
bargaining over other issues. The Flight Attendants’ Union
(IF FA) counterclaims for a ruling that Article 24, the union
security clause, remains in force, including provisions for
check-off of union dues and a requirement that new hires join
the umion. Both parties have moved for summary judgment
and both agree the court is presented with an issue of law,
based on undisputed facts. The motions were argued July 12,
Yee
The isewe raises two questions: (1) Did Article 28, the
duration provision of the contract, cause parts of the contract
that were not the subject of bargaiming to continue in effect, or
did notice of certain intended changes trigger a total termina-
3la
tion of the agreement? (2) If the contract provides for total
termination upon impasse over proposals for limited changes,
is such a duration provision lawful under the Railway Labor
Act?
The arguments of the parties focus on the second question.
It would ordinarily be more appropriate to consider first the
narrower question, largely confined to the rather unusual
language of this agreement, instead of dealing with a statutory
question having major import to labor relations in the airline
industry. Both questions are sufficiently difficult, however, to
justify reasoning in the alternative, and the parties emphasize
the second question in their briefing and argument. The court
will therefore consider the questions in reverse order, and will
initially make the assumption that the contract provided for
total termination of contract obligations upon any impasse in
bargaining, and that a lawful impasse has occurred |
Forceful language in a Supreme Court opinion supports the
IFFA contention that the Railway Labor Act contemplates (1)
continuity in the relationships between employers and repre-
sentatives of employees, and (2) the development of carefully
crafted contractual provisions that will become almost perma-
nent fixtures governing certain phases of the employer.
employee relation. Brotherhood of Kailway & Steamship
Clerks, Freight Handlers, Express & Station Employees ».
Florida East Coast Railway, 384 U.S. 238 (1966) (FEC).
The controversy in the FEC case and in the present case
centers on § 2 Seventh of the Act (45 U.S.C. § 152 Seventh)
which provides that “no carrier shall change the rates of pay,
rules, or working conditions of its employees, as a class, as
! In companion Wtigation, IPFA contends TWA did not bargain in
good faith and had no night to engage in self help (reduction of wages of
flight attendants, etc ) That litigation remams at the dimcovery stage, and
not ready for :rial The court has previously demed a temporary revitanming
order against TWA's exercive of self help All parties are content that, for
present purposes, | treat the unpawe a a lawful one, a | did i ruling the
motron for a restrameng order
——
Yla
embodied in agreements except in the manner prescribed in
such agreements or in Section 6 of this Act.” Section 6 (45
U.S.C. § 156) requires at least thirty days’ written notice of
intended changes in agreements, and thereafter a protracted
negotiating period before the parties are released to make such
changes or otherwise engage in self-help.
Although an air or rail carrier may, after impasse in bargain-
ing over proposed changes and release from further bargaiming
duties by the National Mediation Board, face a strike and may
continue its operations with a substantially different labor
force, the Court declared in FEC:
Any power to change or revise the basic collective
agreement must be closely confined and supervised. These
collective bargaining agreements are the product of years
of struggle and negotiation, they represent the rules gov-
cerning the community of striking employees and the
carrier. That community is not destroyed by the strike, as
the strike represents only an interruption in the continuity
of the relationship. Were a strike to be the occasion for a
carrier to tear up and annul, w to speak, the entire
collective bargaming agreement, labor-management rela-
tions would revert to the jungle. A carrier could then use
the occasion of a strike over a simple wage and hour
dispute to make sweeping changes in its work-rules so as
to permit operation on terms which could not conceivably
have been obtained through negotiation Having made
such changes, a carrier might well have little incentive to
reach a settlement of the dispute that led to the arike. ht
might indeed have strong reason to prolong the strike and
even break the umon The temptation might be strong to
precipitate a strike in order © permit the carrier to
abrogate the entire collective De: gaining agreement on
terms most favorable to &. The processes of bargaining
and mediation called for by the Act would indeed become
a sham if a carrer could unilaterally achieve what the Act
requires be done by the other orderly procedures
4 US. at 246-47
33a
The opinion of Justice Douglas continued: “While the car
rier has the duty to make all reasonable efforts to continuc its
operations during a strike, its power to make new terms and
conditions governing the new labor force ts strictly confined, if
the spirit of the Railway Labor Act is to be honored.” 384 US.
at 247. In footnote 7, the Court observed that a temporary
deviation from the agreement during a strike might be autho-
rized as to changes sought during negotiation or permitted by a
district court as being essential to operations, but at the
conclusion of the strike (presumably by agreement) “the terms
of the carher collective bargaming agreement, except as mod).
fied by any new agreement of the parties, would be fully in
force.” fd.
No member of the Court disagreed with this language, but
Justice White dissented from the conclusion that a district
court could authorize changes in the agreement during the
strike, where such changes had not been the subject of bargain.
ing. 384 U.S. at 249. He described the Court's ruling as one
construing § 2 Seventh as forbidding the carrier “to make any
changes in the contract other than those on which bargamuing
has taken place. . ~ fd.
TWA offers two rationales for distinguishing FEC. Firs, a
contends the FEC ruling itself simply deals with the district
courts’ power, during a strike, to approve a change in collective
bargaining provisions not addressed at the negotiating table
The message to those courts to impose a high burden on a
carrer seeking approval of contemplated changes during the
impasse period seems to have been only a subordinate theme in
the opinion. ht is difficult to avoid the conclusion that the
principal message of the decision is that a carrer acting on its
own is forbidden by law to make “changes m the contract
other than those on which bargaining has taken place.” 384
U.S. at 249 (White, J., dissenting).
,
. The svilabus to the apenon entities one of the Robdeng, eth the
previously quoted language that “if the «ere of the Rarleay | amor Act nm to
be homered” a carrer \ “power to make mew terme and Condition por er meng
Ma
TWA\’s second ranonaie for drstengusshung FEC centers on its
observation that FEC mvolved a raslroad collective bargaming
agreement whech had no cxuperation date, and was therefore a
comtinuing contractual commitment subject to reopening of
particular provimons TWA contends there is implicit reference
to the Court's understanding that the contract itself had not
termunated, in that the Court repeatedly refers to “existing™
agreements
The Ninth Circuit seems to be the only appellate authority
that has comudered the rubng wn FEC and nevertheless permit -
ted what was deemed to be a termination clause to free a
varner from all provmons of a collective hargamuing agreement
after an impasse, including those which had not been the
subject of a § 6 notice /nternenonel Assocwtion of Meckemets
end Acrespece Workers +. Reeve Aleution Airwors, Inc, 468
F.2d WO (Hh Cie 1972), aff > 390 F.Supp. 332 (D.Alaska
1971), core, demeed, 411 U.S. 982 (1973). The Reeve ruling ik
rather summary however, smmply sotung that FEC eas distin-
gurshable eithout comudenng as ranonale Nonetheless, this
court mught feel bound to follow Aerw as a controlling
appellate precedent if « had not been questioned by another
appellate court. See EEOC v. Unwed Aw Limes, 755 F.2d 04, 08
(rh Cie 1985) (Posner, 1). While | am aot convinced that
Judge Posner's cretion of Aeeve s ugnificantly more soundly
reasoned than the Reeve opemon ityelf. the mcuprent conflct
between the Seventh and Ninth Circuits, and the absence of
hhc replacement! lather ferce feat fe} wrath oomfeeed ~ Wheke aoe the
eork of the Court a wiletes « ecawonally exefel The Agwer 4mociation
[ a Anteoe Met Stee! «© 4rehert, 8 FO OW 786 0&9 (2d Cir.
iv
budge Powner comteded that any attemp: te harmonize FEC and
Reeve cows @ « paredes @ that the comtracts coscmmon to the railroad
tenth) Comte fo lermenateee Gate and may therefore be terminated at
oi Det thet ender (PC wach comtracts eould give the union greater
protecteen than ewer 2 tem wear fixed cerm comeract as defined in Reeve. 755
| 2 a @ My enderending of the rettread industry practice, however, is
‘her ke COREL aT: aPC CORteReea@ agreements, with specific provisions modifi-
ame Derwent © lhe Act. eather (hee terminable at will agreements. The
35a
Eighth Circuit appellate precedent, require that | undertake a
more detailed analysis of the issue. | am not persuaded by
TWA’s contention that Reeve should be afforded controlling
precedential effect because certiorari was denied.”
TWA concedes that it is baffled by FEC’s vigorous language
regarding what the Act itself requires, but argues that it should
be disregarded as dicta. The holding in FEC is admittedly
concealed in strong language without an explicit statement of
conclusions. It would have been quite simple, however, to
avoid giving the eloquent lecture about the purposes of the Act
if the Court has viewed the agreement between the parties as
the controlling factor. Moreover, even if properly labelled as
dicta, it is carefully considered dicta that a single trial judge
should almost always treat as binding. That has been my
practice, Powell v. Kovac’s, Inc., 596 F.Supp. 1520, 1524
(W.D.Mo. 1984), and I believe it to be standard. See, e.g.,
United States v. Kahn, 251 F.Supp. 702, 708 (S.D.N.Y. 1966).
The pertinent language is not a casual remark or “very brief
common law principles to which Judge Posner refers yield to a different
statutory intent. There is no paradox in concluding that a continuing
agreement affords more protection than a fixed term agreement. The fact
remains, however, that the Posner opinion senses an inconsistency between
Reeve and the recited “logic” of FEC.
4 One rare indication that the Supreme Court recognizes that its
denials of certiorari might legitimately be occasionally given some weight ts
in a case where the denial was flagged by dissent. United States v. Kras, 409
U.S. 434, 443 (1973). The conventional attitude almost invariably expressed
is that of Justice Marshall in his Kras dissent. 409 U.S. at 461. See Linzer,
“The Meaning of Certiorari Denials,” 79 Col. L. Rev. 1227 (1979). | secline
to speculate that the reason for denial of certiorari in Reeve was agroemen
on the merits with that ruling. Docket conditions might have been « “4. or
or doubt that Reeve would become a significant precedent. While it looms
large in this litigation, more than a dozen years passed before the courts
began to find it necessary to compare it with FEC. During that period it
seems to have been relied on in only one appellate decision, IAM ¥.
Northeast Airlines, $36 F.2d 975, 978 n.2 (ist Cir.), cert. denied, 429 US.
961 (1976), and TWA cites no law review treatment or other identification of
the case as a significant limitation on the general policy favoring continuity
in labor relations under the Railway Labor Act. The Court guessed correctly
if it saw no urgency in dealing with Reeve. ;
36a
statement,” but the major thrust of the FEC opinion. Cf.
Anheuser-Busch, Inc. v. Stroh Brewery Co., 750 F.2d 631, 636
(8th Cir. 1984) (indicating that a casual remark in an opinion of
another circuit may be unpersuasive).
With only slightly shifted emphasis, TWA contends that
neither side in FEC even argued that the contract had expired,
and that the entire opinion is therefore premised on an assump-
tion of an underlying, existing contract. This contention may
well be true, but it in no way undermines the binding nature of
the Court’s holdings with respect to the policies of the Act.
Those policies are not altered by language in contracts which
are necessarily subservient to it.
As stated in FEC, the Act seeks to foster a “community”
between labor and management and to maintain contract
provisions established after “years of struggle and negotia-
tion.” 384 U.S. at 246-47. Allowing the regulated parties to
establish comprehensive termination dates in their contracts
would seemingly flout these purposes. Such provisions would
have a greater tendency to sever the community and destroy
the long established contractual provisions than would nor-
mally be expected under the procedures of § 6. As a matter of
statutory construction, the lesson of FEC appears to confine
the parties to prescribing renegotiation provisions in their
agreements under § 2 Seventh that are consistent with § 6 of
the Act. The statutory right to provide alternate procedures by
contract which are not identical with those provided in § 6
allows the parties to vary the notice periods and the like, but
prevents them from lawfully causing contracts to completely
self-destruct simply upon notice of specified proposed
changes.
This reading of the implications of the FEC decision flows
naturally from the language of the opinion, which is otherwise
hard to explain. It is not novel with this court. In the only
5 While it is theoretically possible, under this interpretation of the
Act, to serve notice that a party desires to change every provision of a
contract, itt may be assumed that this would be so unlikely and would present
such difficulties that parties would rarely if ever adopt this technique. Such a
notice might, moreover, place a party in jeopardy of being found not to be
bargaining with a good faith intention to reach agreement
Va
other pertinent decision from within the Eighth Circuit an
identical reading of FEC occurred, in a thoughtful opinion by
Judge Larson. Cex v. Northwest Airlines, Inc., 319 F.Supp. 92
(D.Minn. 1974). See also ALPA v. United Air Lines, 614
F.Supp. 1020, 1024 (N.D.1Il. 1985) (appeal pending) (residual
provisions that were not renegotiated survive despite existence
of a duration clause in the contract that is arguably a termina-
tion provision, 614 F.Supp. at 1041).° An appellate decision
assuming the FEC decision applies in the airline industry in its
permission for limited self-help is ALPA v. CAB, $02 F.2d 453,
457 n.12 (D.C.Cir. 1974), cert. denied, 420 U.S. 972 (1975).
TWA further contends that a rule requiring continuing con-
tracts, under the doctrine of FEC, will conflict with normal
practice in the airline industry. A source deserving of respect
has noted that airline bargaining practices have developed
differently from those that are customary among railroads.
Burgoon, “Mediation Under the Railway Labor Act,” a chap-
ter in The Railway Labor Act at Fifty, (G.P-O. 1977). In
particular, it is said that airline contracts “are not continuing
instruments. They expire in their entirety on the date set forth
in the agreement.”” /d. at 92. The Burgoon article lends some
support to Justice Douglas’ ruling in FEC, however, in its
discussion of the original intent and essential purpose of the
Railway Labor Act. The author observes:
Another among the railroad industry practices which
influenced the provisions of the Railway Labor Act was
that of negotiating open-end collective bargaining agree-
ments. Railroad agreements do not expire on a given date
but remain in effect until one party or the other proposes
6 it may be observed that although Judge Bua did not refer to the
EEOC decision in his ALPA opinion, he was the district judge in that case.
When he applied FEC principles in ALPA to overcome contract language
that was quite similar to that in Reeve, Judge Bua took the same path that |
do in this portion of my ruling.
7 As will be discussed further, in the recent EEOC case Judge Posner
noted one airline contract that has no such termination clause, and | tind
another in this case. The contract in Reeve was assumed to provide a
termination date, but the language does not unmistakably prevent partial
survival of contract terms
3ha
modification of certain of the agreement's provisions,
whereupon negotiations take place on the specific issues
raised and, when agreement is reached, the contract 1s
modified accordingly. The earliest railroad agreements
known, dating back to the last quarter of the 19th
Century, were of this open-end type and the practice
continues throughout the industry to the present time
__ . Section 6 of the Railway Labor Act provides for
‘thirty days written notice of an intended change in
agreements affecting rates of pay, rules or working condi-
tions . . thus accommodating to the open-end con-
tracts.
Id. at 92. Wt seems, therefore, that Justice Douglas accurately
caught the spirit of the Act in his FEC opinion. It may fairly be
concluded that the right to make agreements prescribing the
manner of changing contract terms, as set forth in § 2 Seventh,
was intended to supplement rather than displace § 6, and
cannot be construed to permit parties to “opt out” of the basic
procedures of the Act. A termination provision avoiding rene-
gotiation of undesired terms conflicts with the Act, as de-
scribed in FEC, and has not been shown to have been within
the contemplation of Congress when it enacted the language in
question in 1934, Although Burgoon says such contracts dem-
onstrate the “flexibility” of the Act, /d., the Supreme Court
ruling in FEC shows the practice to be inconsistent with the
basic mandates of §§ 2 Seventh and 6 of the legislation.
TWA has cited a number of cases that give effect to termina-
tion clauses in airline labor contracts. Several predate the
Supreme Court ruling in FEC or are from the Ninth Circuit
and its constituent districts, where one would expect the panel
opinion in Reeve to prevail. The only airline cases that care-
fully consider the teaching in FEC are Cox and EEOC, both ot
which lend some support to my ruling here.
A final TWA contention is that it cannot collect dues for the
union without an agreement with the union, and that the
Railway Labor Act simply freezes certain rules and conditions
of employment embodied in a prior agreement but does not
Wa
extend the agreement. As stated in EEOC, however, “realisti-
cally, the contract remains in force.” 755 F.2d at 99.
It is concluded that the duration clause of the TWA-IFFA
contract, if construed as TWA urges, would violate the Railway
Labor Act. The portions of the contract not subjected to
renegotiation still exist. The union security clause remains
presently binding on TWA since the only issue dealt with in
bargaining was the use of the check-off during a strike.”
in EEOC v. United Air Lines, Inc., 755 F.2d 94 (th Cir.
1985), Judge Posner avoided a ruling flatly disapproving of the
Reeve decision, 469 F.2d 993, by construing the duration clause
in the airline contract before him as creating an amendable
rather than a terminable contract. The language under consid-
eration specified that the agreement “shall remain in full force
and effect through November |, 1978, and thereafter shall be
subject to change by service of a notice as provided for in
Section 6” of the Railway Labor Act. 755 F.2d at 97. Aithough
the district court had concluded that the contract had termi-
nated in its entirety, the Seventh Circuit disagreed. The appel-
late ruling was that “the service of the notice is the mode of
amendment, implying that what is not sought to be changed
continues in effect. November | really is not a termination date
at all; it is the date before which no changes can be made.” /d.
(Emphasis added.)
The present contract contains a duration clause providing:
Except as otherwise specified in this Agreement, this
entire Agreement shall be effective August 1, 1981 [and]
shall remain in effect until July 31, 1984, and thereafter
———$$—$———_
8 The parties will recognize that | express no view of the issues ot
public policy presented by this cave. It is arguable that the airline industry's
labor-relations legislation should be harmonized with the deregulation of the
airline industry in other respects. See /4M v. TWA, 601 F Supp. 1963, 1372
alt (WD.Mo. 1985). Removal of the industry from Railway Labor Act
coverage and substitution of coverage by the National Labor Relations Act
may well be appropriate. In the meantime, the present parties would be well
advised to resume negotiating to put ther mutilated collective bargaining
agreement in order
shall renew itself without change for yearly periods unless
written notice of intended change is served in accordance
with Section 6. . . of the Railway Labor Act by either
party hereto, at least 90 days prior to the renewal date in
each year.
This language shows that a fotal renewal occurs if no notice is
received. As in EEOC, there is no express language terminating
the agreement in the event of a notice of intended change.
While the notice prevents total renewal, nothing in the wording
prevents partial renewal. On the contrary, partial renewal
seems implied in the language preventing renewal of the “en-
tire” agreement.” The reference to the “entire” contract is
useless, by the TWA interpretation, and merely serves as
emphasis. It is more likely that it has an operative purpose,
distinguishing between all or parts of the agreement. The
language appears to create an amendable contract, as in
EEOC, with prospective changes limited to the subject matter
of the notice.
Under the National Labor Relations Act, contractual provi-
sions authorizing notices seeking modifications of contracts
have sometimes been deemed to cause terminations and have
sometimes been treated as authority for amendments only.
Kaufman and Broad Home Systems, Inc. v. Intern. Broth. of
Firemen and Oilers, 607 F.2d 1104 (Sth Cir. 1979). Consistent
with the policies of the Railway Labor Act, as enunciated in
FEC. the contract at bar should be read harmoniously with
that Act so as to create continuing obligations, except as
changed in accordance with § 6 or with supplemental agree-
ments refining the prescribed procedures.
If extrinsic evidence is admissible or helpful, IFFA has
supplied it. The chief legal counsel of IFFA, who has served in
that capacity for more than nine years, stated by affidavit that
TWA officials have never prior to this controversy referred to
s W hile pleaders are often reheved trom careless, unintended negative
pregnants (2A Moobe's Federal Practwe § 8 24), one would suppose that the
parties adopting language designed tor long-term use can generally he held
more precisely to what they say and the mmplications of what they retrain
from saving. Thes ts not the kind of clause where the parties are likely vo have
planted intentional ambigurtics in order to paper over ditterences
:—
|
|
|
limited number of intended changes. The union security provi-
sion continues in effect, under the circumstances presented by
the cross motions for summary judgment. It is therefore
ORDERED that plaintiff’s motion for summary judgment be
DENIED and defendant's motion for summary judgment be
GRANTED. The Clerk shall enter judgment in favor of defen-
dant.
Plaintiff shall implement the check-off provision of Article
24 within fourteen (14) days of this date, and shall implement
the union membership provision within thirty (30) days of this
date. If notice of appeal is filed, no stay pending appeal will
issue from this court.
The court retains jurisdiction to modify or enforce this
order.
‘sf __ HOWARD F. SACHS
Howard F. Sachs
United States District Judge
DATED: August 1, 1986.
42a
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
St. JOSEPH DIVISION
No. 86-6059-CV-SJ-6
—a—
TRANS WORLD AIRLINES,
Plaintiff,
—
THE INDEPENDENT FEDERATION OF FLIGHT ATTENDANTS,
Defendant.
+
MEMORANDUM TO COUNSEL AND ORDER DENYING
REQUEST FOR FINDINGS AND CONC LUSIONS
REGARDING STAY
A formal statement of findings and conclusions on the
question of granting a stay pending appeal is deemed inappro-
priate because there is no record other than the argument of
counsel on which to rely. Defendant’s motion is therefore
DENIED. A brief statement of my rationale may, however, be
useful.
TWA’s likelihood of success on appeal was not a dispositive
factor.
The balance of harm and the public interest seem to favor
IFFA over TWA. As best I can determine, relying on state-
ments of counsel, as at page 73 of the transcript of the
summary judgment argument on July 12, 1986, IFFA is ap-
proaching the stage of being broken financially by the position
taken by TWA. A bond will not pay current bills. Enforcement
of the union security clause will cause TWA no harm other
than facing a live opponent. Working flight attendants will not
be unduly harmed by being required to comply with union
security provisions long applicable to such employees of TWA.
43a
The union’s statutory role as representative of all member and
nonmember flight attendants appears not to be questioned.
If TWA’s decision to cancel the union security clause is given
continuing effect, the result may well be that envisioned by
Justice Douglas in his FEC opinion. 384 U.S. at 246-7.* Thus
the public interest would not, in my judgment, favor TWA.
/s/ HOWARD F. SACHS
Howard F. Sachs
United States District Judge
DATED: August 8, 1986.
To avoid misunderstanding, | repeat what | said at oral argument. |
do not believe the scenario is as bad as the “worst case” suggested by Justice
Douglas, in that TWA’s bargaining was over important financial issues.
44a
APPENDIX D
Text of Statutes Involved
RAILWAY LABOR ACT
45 U.S.C. § 152. General duties
First. Duty of carriers and employees to settle disputes
It shall be the duty of all carriers, their officers, agents, and
employees to exert every reasonable effort to make and main-
tain agreements concerning rates of pay, rules, and working
conditions, and to settle all disputes, whether arising out of the
application of such agreements or otherwise, in order to avoid
any interruption to commerce or to the operation of any
carrier growing out of any dispute between the carrier and the
employees thereof.
* * *
Fourth. Organization and collective bargaining; freedom from
interference by carrier; assistance in organizing or
maintaining organization by carrier forbidden; deduc-
tion of dues from wages forbidden
Employees shall have the right to organize and bargain
collectively through representatives of their own choosing. The
majority of any craft or class of employees shall have the right
to determine who shall be the representative of the craft or
class for the purposes of this chapter. No carrier, its officers or
agents, shall deny or in any way question the right of its
employees to join, organize, or assist in organizing the labor
organization of their choice, and it shall be unlawful for any
carrier to interfere in any way with the organization of its
employees, or to use the funds of the carrier in maintaining or
assisting or contributing to any labor organization, labor
representative, or other agency of collective bargaining, or in
performing any work therefor, or to influence or coerce em-
ployees in an effort to induce them to join or remain or not to
join or remain members of any labor organization, or to
deduct from the wages of employees any dues, fees, assess-
ments, or other contributions payable to labor organizations,
4Sa
or to collect or to assist in the collection of any such dues, fees,
assessments, or other contributions: Provided, That nothing in
this chapter shall be construed to prohibit a carrier from
permitting an employee, individually, or local representatives
of employees from conferring with management during work-
ing hours without loss of time, or to prohibit a carrier from
furnishing free transportation to its employees while engaged
in the business of a labor organization.
Fifth. Agreements to join or not to join labor organizations
forbidden
No carrier, its officers, or agents shall require any person
seeking employment to sign any contract or agreement promis-
ing to join or not to join a labor organization; and if any such
contract has been enforced prior to the effective date of this
chapter, then such carrier shall notify the employees by an
appropriate order that such contract has been discarded and is
no longer binding on them in any way.
Seventh. Change in pay, rules, or working conditions contrary
to agreement or to section 156 forbidden
No carrier, its officers or agents shall change the rates of pay,
rules, or working conditions of its employees, as a class as
embodied in agreements except in the manner prescribed in
such agreements or in section 156 of this title.
Eleventh. Union security agreements; check-off
Notwithstanding any other provisions of this chapter, or of
any other statute or law of the United States, or Territory
thereof, or of any State, any carrier or carriers as defined in
this chapter and a labor organization or labor organizations
duly designated and authorized to represent employees in
accordance with the requirements of this chapter shall be
per mitted—
46a
(a) to make agreements, requiring, as a condition of
continued employment, that within sixty days following
the beginning of such employment, or the effective date
of such agreements, whichever is the later, all employees
shall become members of the labor organization repre-
senting their craft or class: Provided, That no such
agreement shall require such condition of employment
with respect to employees to whom membership is not
available upon the same terms and conditions as are
generally applicable to any other member or with respect
to employees to whom membership was denied or termi-
nated for any reason other than the failure of the em-
ployee to tender the periodic dues, initiation fees, and
assessments (not including fines and penalties) uniformly
required as a condition of acquiring or retaining member-
ship.
(b) to make agreements providing for the deduction by
such carrier or carriers from the wages of its or their
employees in a craft or class and payment to the labor
organization representing the craft or class of such em-
ployees, of any periodic dues, initiation fees, and assess-
ments (not including fines and penalties) uniformly
required as a condition of acquiring or retaining member-
ship: Provided, That no such agreement shall be effective
with respect to any individual employee until he shall have
furnished the employer with a witten assignment to the
labor organization of such membership dues, initiation
fees, and assessments, which shall be revocable in writing
after the expiration of one year or upon the termination
date of the applicable collective agreement, whichever
occurs sooner.
* * *
(d) Any provisions in paragraphs Fourth and Fifth of
this section in conflict herewith are to the extent of such
conflict amended.
4a
§ 153. National Railroad Adjustment Board
* 7 *
Second. System, group, or regional boards: establishment by
voluntary agreement; special adjustment boards:
establishment, composition, designation of repre-
sentatives by Mediation Board, neutral member, com-
pensation, quorum, finality and enforcement of
awards
Nothing in this section shall be construed to prevent any
individual carrier, system, or group of carriers and any class or
classes of its or their employees, all acting through their
representatives, selected in accordance with the provisions of
this chapter, from mutually agreeing to the establishment of
system, group, or regional boards of adjustment for the
purpose of adjusting and deciding disputes of the character
specified in this section. In the event that either party to such a
system, group, or regional board of adjustment is dissatisfied
with such arrangement, it may upon ninety days’ notice to the
other party elect to come under the jurisdiction of the Adjust-
ment Board.
If written request is made upon any individual carrier by the
representative of any craft or class of employees of such carrier
for the establishment of a special board of adjustment to
resolve disputes otherwise referable to the Adjustment Board,
or any dispute which has been pending before the Adjustment
Board for twelve months from the date the dispute (claim) is
received by the Board, or if any carrier makes such a request
upon any such representative, the carrier or the representative
upon whom such request is made shall join in an agreement
establishing such a board within thirty days from the date such
request is made. The cases which may be considered by such
board shall be defined in the agreement establishing it. Such
board shall consist of one person designated by the carrier and
one person designated by the representative of the employees.
If such carrier or such representative fails to agree upon the
establishment of such a board as provided herein, or to
exercise its rights to designate a member of the board, the
48a
carrier or representative making the request for the establish-
ment of the special board may request the Mediation Board to
designate a member of the special board on behaif of the
carrier or representative upon whom such request was made.
Upon receipt of a request for such designation the Mediation
Board shall promptly make such designation and shall select an
individual associated in interest with the carrier or representa-
tive he is to represent, who, with the member appointed by the
carrier or representative requesting the establishment of the
special board, shall constitute the board. Each member of the
board shall be compensated by the party he is to represent. The
members of the board so designated shall determine all matters
not previously agreed upon by the carrier and the representa-
tive of the employees with respect to the establishment and
jurisdiction of the board. If they are unable to agree such
matters shall be determined by a neutral member of the board
selected or appointed and compensated in the same manner as
is hereinafter provided with respect to situations where the
members of the board selected or appointed and compensated
in the same manner as is hereinafter provided with respect to
situations where the members of the board are unable to agree
upon an award. Such neutral member shall cease to be a
member of the board when he has determined such matters. If
with respect to any dispute or group of disputes the members
of the board designated by the carrier and the representative
are unable to agree upon an award disposing of the dispute or
group of disputes they shall by mutual agreement select a
neutral person to be a member of the board for the consider-
ation and disposition of such dispute or group of disputes. In
the event the members of the board designated by the parties
are unable, within ten days after their failure to agree upon an
award, to agree upon the selection of such neutral person,
either member of the board may request the Mediation Board
to appoint such neutral person and upon receipt of such
request the Mediation Board shall promptly make such ap-
pointment. The neutral person so selected or appointed shall be
compensated and reimbursed for expenses by the Mediation
Board. Any two members of the board shall be competent to
render an award. Such awards shall be final and binding upor
49a
both parties to the dispute and if in favor of the petitioner,
shall direct the other party to comply therewith on or before
the day named. Compliance with such awards shall be enforci-
ble by proceedings in the United States district courts in the
same manner and subject to the same provisions that apply to
proceedings for enforcement of compliance with awards of the
Adjustment Board.
* * *
§ 155. Functions of Mediation Board
First. Disputes within jurisdiction of Mediation Board
The parties, or either party, to a dispute between an em-
ployee or group of employees and a carrier may invoke the
services of the Mediation Board in any of the following cases:
(a) A dispute concerning changes in rates of pay, rules, or
working conditions not adjusted by the parties in conference.
(b) Any other dispute not referable to the National Railroad
Adjustment Board and not adjusted in conference between the
parties or where conferences are refused.
The Mediation Board may proffer its services in case any
labor emergency is found by it to exist at any time.
In either event the said Board shall promptly put itself in
communication with the parties to such controversy, and shall
use its best efforts, by mediation, to bring them to agreement.
If such efforts to bring about an amicable settlement through
mediation shall be unsuccessful, the said Board shall at once
endeavor as its final required action (except as provided in
paragraph third of this section and in section 160 of this title)
to induce the parties to submit their controversy to arbitration,
in accordance with the provisions of this chapter.
If arbitration at the request of the Board shall be refused by
one or both parties, the Board shall at once notify both parties
in writing that its mediatory efforts have failed and for thirty
days thereafter, unless in the intervening period the parties
agree to arbitration, or an emergency board shall be created
under section 160 of this title, no change shall be made in the
50a
rates of pay, rules, or working conditions or established prac-
tices in effect prior to the time the dispute arose.
* * *
§ 156. Procedure in changing rates of pay, rules, and working
conditions
Carriers and representatives of the employees shall give at
least thirty days’ written notice of an intended change in
agreements affecting rates of pay, rules, or working conditions,
and the time and place for the beginning of conference between
the representatives of the parties interested in such intended
changes shall be agreed upon within ten days after the receipt
of said notice, and said time shall be within the thirty days
provided in the notice. In every case where such notice of
intended change has been given, or conferences are being held
with reference hereto, or the services of the Mediation Board
have been requested by either party, or said Board has prof-
fered its services, rates of pay, rules, or working conditions
shall not be altered by the carrier until the controversy has
been finally acted upon as required by section 155 of this title,
by the Mediation Board, unless a period of ten days has
elapsed after termination of conferences without request for or
proffer of the services of the Mediation Board.
* * *
§ 160. Emergency beard
If a dispute between a carrier and its employees be not
adjusted under the foregoing provisions of this chapter and
should, in the judgment of the Mediation Board, threateu
substantially to interrupt interstate commerce to a degree such
as to deprive any section of the country of essential transporta-
tion service, the Mediation Board shall notify the President,
who may thereupon, in his discretion, create a board to
investigate and report respecting such dispute. Such board
shall be composed of such number of persons as to the
President may seem desirable: Provided, however, That no
member appointed shall be pecuniarily or otherwise interested
in any organization of employees or any carrier. The compen-
& loa
. Sila j
sation of the members of any such board shall be fixed by the
President. Such board shall be created separately in each
instance and it shall investigate promptly the facts as to the
dispute and make a report thereon to the President within
thirty days from the date of its creation.
There is hereby authorized to be appropriated such sums as
may be necessary for the expenses of such board, including the
compensation and the necessary traveling expenses and ex-
penses actually incurred for swbsistance, of the members of the
board. All expenditures of the board shall be allowed and paid
on the presentation of itemized vouchers therefor approved by
the chairman.
After the creation of such board and for thirty days after
such board has made its report to the President, no change,
except by agreement, shall be made by the parties to the
controversy in the conditions out of which the dispute arose.
* * *
§ 184. System, group, or regional boards of adjustment
The disputes between an employee or group of employees
and a carrier or carriers by air growing out of grievances, or
out of the interpretation or application of agreements concern-
ing rates of pay, rules, or working conditions, including cases
pending and unadjusted on April 10, 1936 before the National
Labor Relations Board, shall be handled in the usual manner
up to and including the chief operating officer of the carrier
designated to handle such disputes; but, failing to reach an
adjustment in this manner, the disputes may be referred by
petition of the parties or by either party to an appropriate
adjustment board, as hereinafter provided, with a full state-
ment of the facts and supporting data bearing upon the
disputes.
It shall be the duty of every carrier and of its employees,
acting through their representatives, selected in accordance
with the provisions of this subchapter, to establish a board of
adjustment of jurisdiction not exceeding the jurisdiction which
may be lawfully exercised by system, group, or regional boards
of adjustment, under the eathority of section 153 of this title.
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Such boards of adjustment may be established by agreement
between employees and carriers either on any individual car-
rier, or system, or group of carriers by air and any class or
classes of its or their employees; or pending the establishment
of a permanent National Board of Adjustment as hereinafter
provided. Nothing in this chapter shall prevent said carriers by
air, or any class or classes of their employees, both acting
through their representatives selected in accordance with provi-
sions of this subchapter, from mutually agreeing to the estab-
lishment of a National Board of Adjustment of temporary
duration and of similarly limited jurisdiction.
NATIONAL LABOR RELATIONS ACT
29 U.S.C. § 158. Unfair labor practices
(a) It shall be an unfair labor practice for an employer—
(1) to interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed in section 157 of this
title;
(2) to dominate or interfere with the formation or
administration of any labor organization or contribute
financial or other support to it: Provided, That subject to
rules and regulations made and published by the Board
pursuant to section 156 of this title, an employer shall not
be prohibited from permitting employees to confer with
him during working hours without loss of time or pay;
(3) by discrimination in regard to hire or tenure of
employment or any term or condition of employment to
encourage or discourage membership in any labor organi-
zation: Provided, That nothing in this subchapter, or in
any other statute of the United States, shall preclude an
employer from making an agreement with a labor organi-
zation (not established, maintained, or assisted by any
action defined in this subsection as an unfair labor prac-
tice) to require as a condition of employment membership
therein on or after the thirtieth day following the begin-
ning of such employment or the effective date of such
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agreement, whichever is the later, (i) if such labor organi-
zation is the representative of the employees as provided
in section 159(a) of this title, in the appropriate collective-
bargaining unit covered by such agreement when made,
and (ii) unless following an election held as provided in
section 159(e) of this title within one year preceding the
effective date of such agreement, the Board shall have
certified that at least a majority of the employees eligible
to vote in such election have voted to rescind the authority
of such labor organization to make such an agreement:
Provided further, That no employer shall justify any
discrimination against an employee for nonmembership in
a labor organization (A) if he has reasonable grounds for
believing that such membership was not available to the
employee on the same terms and conditions generally
applicable to other members, or (B) if he has reasonable
grounds for believing that membership was denied or
terminated for reasons other than the failure of the
employee to tender the periodic dues and the initiation
fees uniformly required as a condition of acquiring or
retaining membership;
x * *
LABOR MANAGEMENT RELATIONS ACT
29 U.S.C. § 186. Restrictions on financial transactions
Payment or lending, etc., of money by employer or agent to
employees, representatives, Or labor organizations
(a) It shall be unlawful for any employer or association of
employers or any person who acts
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