# Record and brief — Trans World Airlines, Inc. v. Independent Federation of Flight Attendants > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1222%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 1987 - **Citation:** 482 U.S. 913 ## Text 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 :) —_—_—_—_—_—_—_—_—N—X—X—X—X—X—X—X—Ys—X—XJXNa£_—X—X—S—_——__l___o...Y. Cc... .c.c....."::?>> } 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. ——_ 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 _———_——_—___——__ 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 Re [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1222%3A0. Public record. Not legal advice.