Amicus Curiae Brief — US Airways, Inc. v. Barnett

: FILED |

No. 00-1250 2 mm

JUL 9 2001

~~

CLERK

me Court of the United States

-_—<-

US AIRWAYS, INC.,

Petitioner,

v.

ROBERT BARNETT,

Respondent.

On Writ oF CERTIORARI TO THE

UniTepD STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF AMICI CURIAE OF THE AIR TRANSPORT

ASSOCIATION OF AMERICA, INC. AND AIRLINE

INDUSTRIAL RELATIONS CONFERENCE IN SUPPORT

OF PETITIONER

RoBeRT P. WARREN JOHN J. GALLAGHER

Davip A. BERG Counsel of Record

AIR TRANSPORT ASSOCIATION MAarGareT H. SpurRLIN

Or AMERICA, INC. PAUL, HASTINGS, JANOFSKY

1301 Pennsylvania Ave.,.N.W. & WALKER LLP

Suite 1100 1299 Pennsylvania Ave., N.W.

Washington, D.C. 20004-1707 Tenth Floor

(202) 626-4000 Washington, D.C. 20004-2400

(202) 508-9500

Rosert J. DeELucIA

AIRLINE INDUSTRIAL RELATIONS

CONFERENCE

1300 19th St. N.W.

Washington, D.C. 20036

(202) 861-7550

Counsel for Amici Curiae

Air Transport Association of America, Inc. and

Airline Industrial Relations Conference

i

TABLE OF CONTENTS

Table of Cited Authorities .........ccccccecveee

Interest Of The Amici Curiae ................5.

Summary Of Argument .........cccccccccccees

SPT TT TT Tee e PTT eT ETT T TT ery

I. Seniority Systems For Union And Nonunion

Employees Are Fundamental To The Smooth

Functioning Of The Airline Industry ......

II. The “Reasonable Accommodation” Language

Of The ADA Does Not Require An Employer

To Override A Bona Fide Seniority System

Ill. The ADA Provides No Basis To Distinguish

Between Union And Non-Union Seniority

0 re rer rer Tree ree ree

A eon eel ee

Page

10

21

27

il

TABLE OF CITED AUTHORITIES

Page

Cases:

Airline Pilot Ass'n, Int'l v. Department of Transp.,

SEO F.26 4391 (DL. Cis. GERD oc cccvccvencnus 9

Aldrich v. Boeing Co.,

146 F.3d 1265 (10th Cir. 1998), cert. denied,

$26 U.S. 246 (IGRD 20 ccccececeeeeeee 22

Anderson v. Ford Motor Co.,

803 F.2d 953 (8th Cir. 1986) ................ 24

Benson v. Northwest Airlines, Inc.,

62 F.3d 1108 (8th Cir. 1995) ................ 22

Bertulli v. Independent Ass'n of Cont’! Pilots,

242 F.3d 290 (Sth Cir. 2001) ................ 7,8

Boersig v. Union Elec. Co.,

219 F.3d 816 (8th Cir. 2000), cert. denied,

121 S. Ce. G57 GARGS) 2 wccccecccceseuuane 22, 25

Breininger v. Sheet Metal Workers Int'l,

493 US. G7 (IGGR) ..cccvcsceweneeeueeneee 5

Buckhannon Board and Care Home, Inc.

v. West Va. Dep't of Health and Human Res.,

128 3S. Ce. 1GSS CHRSED oc cccvscecseceunueeue 18

il

Cited Authorities

Cannon v. University of Chicago,

En 2. cneeesedceeeeeocceces

Carter v. Tisch,

822 F.2d 465 (4th Cir. 1987) ..........00065.

Cassidy v. Detroit Edison Co.,

138 F.3d 629 (6th Cir. 1998) ...........0055.

Daubert v. United States Postal Serv.,

733 F.2d 1367 (10th Cir. 1984) ..............

Daugherty v. City of El Paso,

56 F.3d 695 (Sth Cir. 1995) 2.0... 06. c cece

Davis v. Florida Power & Light Co.,

205 F.3d 1301 (11th Cir.), cert. denied,

CPD ccccoccccccesccceccees

DelCostello v. Teamsters,

Ee

Delta-Chicabo & S. Merger,

PTET CREED cocccccccccccccceccess

EEOC v. E.l. duPont de Nemours & Co.,

445 F. Supp. 223 (D.Del. 1978) ..............

EEOC v. Humiston-Keeling, Inc.,

227 F.3d 1024 (7th Cir. 2000) ............ 19,

15

19

iv

Cited Authorities

Page

EEOC v. Sara Lee Corp.,

og & bo De ll ee 6, 23

Eastern Associated Coal Corp. v.

United Mine Workers of Am.,

ee CT eo ec celédcd baductudunas 2

Eckles v. Consolidated Rail Corp.,

94 F.3d 1041 (7th Cir. 1996) ......... 13, 17, 22, 25

Feliciano v. Rhode Island,

160 F.3d 780 (ist Cir. 1998) ................. 22

Ford Motor Co. v. Huffman,

EY beet cknd co ndinaneedous 24

Foreman v. Babcock & Wilcox Co..,

117 F.3d 800 (Sth Cir. 1997), cert. denied,

Ss SEE, wucndccnenaneesueckeues 22, 23

General Comm. of Adjustment of Bhd. of Locomotive

Eng'rs v. Missouri-Kansas-Texas Ry. Co.,

TA SPE céendedececcosseenesses 7)

Gile v. United Airlines, Inc.,

Je fF fy l. e066 ree 12

Gorrill v. Icelandair/Flugleidir,

ok | og ree 24

Vv

Cited Authorities

Humphrey v. Moore,

Fe a SEED bed ccccvcccccncdsocesces

James v. Stockham Valves & Fittings Co.,

559 F.2d 310 (Sth Cir. 1977) .............44..

Jasany v. United States Postal Serv.,

755 F.2d 1244 (6th Cir. 1985) ...............

Kralik v. Durbin,

See CEES DEED 6606.cheeecceoeeues

Lorance v. AT&T Techs., Inc.,

Ge SEED cduccedacusenetveessees

Milton v. Scrivner, Inc.,

53 F.3d 1118 (10th Cir. 1995) ...............

NLRB v. Erie Resistor Corp.,

DIO UB. TBO CHG cc cccccccccccccvccccess

Northwest Airlines v. Air Line Pilots Ass'n,

GO Te SEED cccvcceccescocevcceces

Order of R.R. Conductors v. Pitney,

Be es FE CUSSED cccccvcccccccvccesesecs

Piper v. Chris-Craft Indus., Inc.,

SP ee CESGED cccccccccecesescccesecses

10

15

vi

Cited Authorities

Page

Pullman-Standard v. Swint,

Se ED ‘dé verivnd cideeannnaseéeds 25

Railway Labor Executives Ass'n v. Southern Ry.,

806 F.2d 1038 (11th Cir. 1988) .............. )

Rakestraw v. United Airlines, Inc.,

981 F.2d 1524 (7th Cir. 1992) ............. 8, 10, 24

Rogers v. Air Line Pilots Ass'n, Int'l,

988 F.2d 607 (Sth Cir. 1993) ................ 8

Shea v. Tisch,

870 F.2d 786, 870 F.2d 786 (ist Cir. 1989)..... 14

Smith v. Midland Brake, Inc.,

180 F.3d 1154 (10th Cir. 1999) ............. 13, 23,

Sutton v. United Airlines,

EE foe ocd dicarvnsasaeebeta 2

Teamsters v. United States,

ee SE 6 sino cecncecaiacdesiens 25, 26

Trans World Airlines, Inc. v. Hardison,

432 US. TE CISTI) 2... .ccccees 3, 4, 5, 10, 11, 13, 14

Trans World Airlines, Inc. v. Independent

Fed'n of Flight Attendants,

Se SED dnens bnesuctcdeoosciicsss 24

vil

Cited Authorities

Page

United States v. Public Utils. Comm'n of Cal.,

SU ED oc cnc nbnudeteseedeeeees 15

Wernick v. Federal Reserve Bank,

be byl: Le f. Ferree 19

White v. National Steel Corp,

938 F.2d 474 (4th Cir. 1991) .............5.. 24

Williams v. New Orleans S.S. Ass'n,

673 F.2d 742 (Sth Cir. 1982) ................ 26

Willis v. Pacific Mar. Ass'n,

162 F.3d 561 (9th Cir. 1998), op. withdrawn,

op. replaced, 236 F.3d 1160 (9th Cir. 2001) .... 21

Willis v. Pacific Mar. Ass'n,

236 F.3d 1160 (9th Cir. 2001) ............ 13, 18, 22

Statutes:

BOUBL. 6 BGG .ccccccccccccccccccccssces 8

POUBC. GGRRAMA) ccccccccvcccccccccese 26

BP UB. © FOO cco cccccccvcccccecscessceccoss 14

ID cca ccevesesenvucssses 4,12

42 U.S.C. § 12112(b)(SMA) ........--- ee eee ee 10

vill

Cited Autherities o

Page

Se ED Ssh ovetcdsosccdodccsosss 15

42 UBL. § FOGG MAME) .nccccsccccccccccces 11

GS Us G BSS O ED cece cccccccccccescccesse 25, 26

SPA EE Sncéngonesnnteneedkeues 8

Other Authorities:

Ps SUED 6 s-00bcdcebeceeterdccdees 14

SPEED bi nbkcecesceceescucesscanes 13

H.R. Rep. No. 101-485 (1990) .............. 14, 16, 19

Be ERP OG. TESPE DO QESEED cc cccccccccccsecccees 16

l

INTEREST OF THE AMICI CURIAE '

The Air Transport Association of America, Inc. (“ATA”)

is a membership organization comprised of twenty-two

U.S. certificated air carriers.2 ATA’s members account for

more than 97% of the domestic passenger and cargo traffic

flown annually by U.S. air carriers and employ over half a

million people.

The Ajrline Industrial Relations Conference

(“AIRCON”) is a membership association of twenty-one

U.S. certificated air carriers,’ which was formed to facilitate

1. No counsel for either party authored this brief, either in whole

or in part. No entity other than the amici and their members made

any monetary contribution to the preparation or submission of this

brief. Petitioner and Respondent have consented to the filing of this

brief. Letters indicating their consent have been filed with the Clerk

of this Court.

2. ATA’s members are Airborne Express, Alaska Airlines, Aloha

Airlines, America West Airlines, American Airlines, American Trans

Air, Atlas Air, Continental Airlines, Delta Air Lines, DHL Airways,

Emery Worldwide, Evergreen International, Federal Express,

Hawaiian Airlines, Midwest Express Airlines, Northwest Airlines,

Polar Air Cargo, Southwest Airlines, Trans World Airlines, United

Airlines, United Parcel Service, and US Airways. Associate members

are Aerovias de Mexico, Air Canada, Canadian Airlines International,

KLM-Royal Dutch Airlines, and Mexicana de Aviacion.

3. AIRCON’s members overlap with those of ATA, except that

(1) DHL Airways, Evergreen International and Polar Air are members

of ATA but not members of AIRCON; and (2) Jet Blue Airways and

Sun Country Airlines, Inc. are members of AIRCON but not members

of ATA.

2

the exchange of ideas and information conceri:!ng personnel

and labor relations issues in the airline industry, and to

represent the member carriers with respect to employment-

related legislative, judicial and administrative matters.

ATA and AIRCON each regularly represent the interests

of their member carriers in legislative, judicial and

administrative matters, and have filed numerous amicus

briefs in federal and state court proceedings concerning a

variety of aviation-related issues. Both ATA and AIRCON

have previously participated as amicus curiae in this Court

in Eastern Associated Coal Corp. v. United Mine Workers

of Am., 531 U.S. 57 (2000); and Northwest Airlines, Inc. v.

Air Line Pilots Ass'n, 486 U.S. 1014 (1988), and ATA has

done so in Sutton v. United Airlines, 527 U.S. 471 (1999).

Both ATA and AIRCON also work closely with the various

Federal agencies that regulate airline safety such as the

Federal Aviation Administration and the Department of

Transportation.

Virtually all of the non-management employees of

ATA’s and AIRCON’s members work under bona fide

seniority systems. Such seniority systems cover not only the

industry’s unionized employees, but also more than 100,000

non-union employees. At many of the major carriers, non-

union seniority systems pre-date World War II. Seniority

governs the allocation of vacancies and work schedules

(shifts and days off) in the labor-intensive airline industry,

which operates 24 hours a day, every day of the year.

Seniority-based bidding is integral to the functioning of these

air carriers. Amici are vitally concerned with the smooth and

uninterrupted functioning of seniority systems to promote

stability of labor and employment relations in the airline

industry.

3

SUMMARY OF ARGUMENT

Nine circuit courts of appeals have held that the

“reasonable accommodation” standard under the Americans

With Disabilities Act (“ADA”) does not require an employer

to modify a bona fide seniority system in order to give

preference to an employee with a disability. In this case, the

Ninth Circuit disagreed. By requiring employers to depart

from established seniority rules, the Ninth Circuit’s decision

would do far more than require employers to “accommodate”

an employee with a disability; it would give the employee

with a disability a preferred status in the workplace with

special rights that trump the otherwise settled rights and

expectations of other employees.

The Ninth Circuit’s opinion here represents a significant .

departure from this Court’s prior holding that a requirement

for “reasonable accommodation” of religious beliefs under

Title VII does not require an employer to override a bona

fide seniority system. “It would be anomalous to conclude

that by ‘reasonable accommodation’ Congress meant that

an employer must deny the shift and job preference of some

employees, as well as deprive them of their contractual rights,

in order to accommodate or prefer the ... needs of

others. . . .” Trans World Airlines, Inc. v. Hardison, 432 U.S.

63, 81 (1977) (religious accommodation).* This respect for

4. While Hardison arose under Title VII of the Civil Rights

Act of 1964, which contains an express exemption, § 703(h), relating

to bona fide seniority systems, the Court’s discussion of “reasonable

accommodation” did not turn upon the language of § 703(h).

The Court in Hardison discussed the scope of “reasonable

accommodation,” and reached its conclusion, in Section B.1, then

proceeded to note in Section B.2 that “our conclusion is supported

by” Section 703(h). 432 U.S. at 81.

4

seniority systems “strikes a balance between the interests of

those protected against discrimination ... and those who

work — perhaps for many years — in reliance upon the

validity of a facially lawful seniority system.” Lorance v.

AT&T Techs., Inc., 490 U.S. 900, 912 (1989).

There is no basis in the language of the ADA for the

result reached by the Ninth Circuit. The ADA’s definition

of “reasonable accommodation” includes “job restructuring,

part-time or modified work schedules, reassignment to a

vacant position, acquisition or modification of equipment

or devices, appropriate adjustment or modification of

examinations, training materials or policies, the provision

of qualified readers or interpreters, and other similar

accommodations for individuals with disabilities.”

42 U.S.C. § 12111(9)(B) (emphasis added). Under the

doctrine of ejusdem generis, a mandatory preference that

displaces the rights and expectations of other employees is

simply not a “similar accommodation” to those listed in the

statutory language — none of which directly impinge on

longstanding expectations or transfer the job rights of one

employee to another. * There is a qualitative difference

between an accommodation that assists an employee with a

disability but penalizes no one else (e.g. training, assistance

or assistive devices), and the preference created here, which

effectively “bumps” an incumbent employee to make a

position available for the employee with a disability. Unlike

the statutory examples, such a preference is likely to lead to

resentment and hostility in the workplace against the

5. As the cases cited below in Section | illustrate, more than

one employee is likely to be affected by a change in seniority rules

to accommodate an employee with a disability; there is likely to be

a “ripple effect” on employees who would otherwise have been

entitled to the resulting secondary and later vacancies.

5

employee with a disability, because the “accommodation”

has come at the expense of the settled and legitimate job

expectations of other employees. See Breininger v. Sheet

Metal Workers Int’l., 493 U.S. 67, 91-92 (1989) (statute does

not apply where conduct specifically enumerated in statute

materially differs from conduct at issue).

Finally, there is no basis in the ADA to distinguish

between collectively bargained seniority systems and other

bona fide seniority systems; such a distinction would make

non-union employees “second-class citizens” for purposes

of the ADA.

ARGUMENT

I. SENIORITY SYSTEMS FOR UNION AND

NONUNION EMPLOYEES ARE FUNDAMENTAL

TO THE SMOOTH FUNCTIONING OF THE

AIRLINE INDUSTRY

As this Court recognized in Trans World Airlines, Inc.

v. Hardison, 432 U.S. at 79-81, the airline industry requires

round-the-clock staffing with job assignments that vary

greatly in their desirability. Today’s major airlines have

nationwide systems serving many cities, large and small;

the carriers regularly add or delete locations and vary staffing

levels according to market and economic conditions. As a

result of these factors, virtually all major air carriers have

deveicped system-wide seniority systems, for both union and

non-union employees.* These systems ensure fair and reliable

6. The pattern of unionization in the airline industry is widely

varied: At Northwest Airlines, for example, more than or of “a

ont’

6

staffing and scheduling,’ and provide an objective system to

ascertain employment preferences and allocate employment

opportunities of widely varying desirability — thereby

enhancing employee retention and job satisfaction and giving

added protection against potential arbitrary or capricious action.

Airline employees generally earn premium wages and benefits.*

As aresult, attrition is lower and most air carriers have thousands

of long-term employees whose seniority rights and expectations

have built up over long periods of time.

(Cont’d)

non-management employees are union-represented, while at Delta,

approximately 90% are non-union. More than 60,000 mechanics, flight

attendants, ramp service employees, and customer service agents at Delta

all work under non-union seniority systems, as do 20,000 non-union

customer service agents at American Airlines and 19,000 non-union

customer service agents at Continental Airlines.

7. Seniority is “a neutral and non-arbitrary method of resolving

sensitive questions in the workplace. The policy allows all workers to

know the rules of the game before a decision is made.” EEOC v. Sara

Lee Corp., 237 F.3d 349, 354-55 (4th Cir. 2001). Airline seniority

systems generally govern both allocation of vacancies across the system

and allocation of schedules within each workplace. When job vacancies

arise anywhere on the system, airline employees submit bids to exercise

seniority to assume different positions, which may be in a different

city or a different job assignment, such as line mechanic or lead

mechanic, first officer or captain of various aircraft types. (Conversely,

in a reduction in force, seniority controls who may retain a job, and

who is to be transferred or furloughed.) Scheduling bids contain a variety

of work schedules within each work unit, including shift and days off

for ground employees and days of work for flight employees.

8. Average wages for scheduled airlines full time employees in

2000 were $54,813, benefits $10,172, and payroll taxes $3,790, for

average total compensation of $68,775. ATA 2001 Annual Report.

7

Even small changes in the operation of airline seniority

systems can lead to significant consequences to other

employees on the seniority list, spawning litigation and

resentment in the workplace. In Bertulli v. Independent Ass'n

of Cont 'l Pilots, 242 F.3d 290 (Sth Cir. 2001), for example,

the Fifth Circuit explained the significance of an adjustment

in the seniority of eleven pilots, which impacted 1,700 other

pilots:

Loss of seniority . . . carries with it the possibility

of several forms of concrete injury, such as slower

promotion, greater likelihood of being laid off,

and lower benefits. In addition, of course, to the

possibility that plaintiffs’ bidding for routes

would be affected.

Id. at 295 and n.17. The Fifth Circuit also recognized that

the “ripple effect” caused by any interruption to seniority

order can affect large numbers of other employees:

Defendants argue that . . . since only eleven pilots

had their seniority restored, only eleven class

members could possibly have lost work

assignments because of their lower seniority. . . .

This argument fails on its own terms. Restoring a

single pilot’s seniority could cause many pilots

to lose their preferred routes. If one pilot is forced

to accept her second-choice route, she may in turn

displace from that route another, less senior pilot

who in turn must take his second-choice route,

and so on. A loss of preferred routes could thus

cascade all the way down the seniority list.

Moreover, the injury to the class members is not

merely loss of a specific work assignment or an

identifiable sum of money; loss of seniority is

itself aharm....

Id. at 296. See also Rogers v. Air Line Pilots Ass'n, Int'l,

988 F.2d 607 (Sth Cir. 1993) (six month adjustment of their

seniority caused two pilots to be placed on furlough several

times, and to be placed in the lowest category in seniority

integration proceedings following a merger); Rakestraw v.

United Airlines, Inc., 981 F.2d 1524, 1529 (7th Cir. 1992)

(seniority changes led to “many lost routes, bases, aircraft,

and positions in the cockpit they preferred.”); Humphrey v.

Moore, 375 U.S. 335, 346-47 (1964) (“Seniority has become

of overriding importance, and one of its major functions is

to determine who gets or who keeps an available job.”).

As the Seventh Circuit observed in Rakestraw:

Once a seniority system is in place, many

employees come to think of their position in the

pecking order as a form of property. Higher

seniority means more desirable assignments and

greater security of employment. Preventing jolts

to these expectations is an objective the legal

system shares with the parties. E.g., Lorance v.

AT&T Techs., Inc., 490 U.S. 900, 912 (1989).

981 F.2d at 1535.

Preventing “jolts” to employee rights and expectations,

and the attendant possibility of prolonged disputes, was one

of the principal reasons Congress enacted the Railway Labor

Act, 45 U.S.C. § 151 et seq., and later extended that Act to

the airline industry. The RLA was intended to provide

for the “prompt and orderly settlement of disputes.”

9

45 U.S.C. § 151,” and to “leave a minimum responsibility to

the courts.” Order of Ry. Conductors of Am. v. Pitney, 326 U.S.

561, 566 (1946). Accord General Comm. of Adjustment of Bhd.

of Locomotive Eng'rs v. Missouri-Kansas-Texas Ry. Co., 320

U.S. 323, 332-33 (1943). The Ninth Circuit’s decision, in

contrast, threatens ad hoc “jolts” to settled seniority rights, and

lengthy litigation, every time an employee with a disability

claims a need for accommodation."°

9. For similar reasons, the statute of limitations under both the

Railway Labor Act and the National Labor Relations Act is a relatively

short period — six months. 29 U.S.C. § 160(b); De/Costello v. Teamsters,

462 U.S. 151, 158 (1983); Railway Labor Executives Ass'n v. Southern

Ry. Co., 860 F.2d 1038, 1041-42 (11th Cir. 1988).

10. Given the huge size of the workforce at most major air carriers,

a number of disability claims can be expected in each large job group

at each carrier. Under the Ninth Circuit's approach, if the carrier does

not voluntarily create seniority exceptions, (thereby undermining the

uniformity and consistency of the seniority system) every one of these

claims could result in ad hoc intervention by the federal courts to

determine whether, and to what extent, seniority rules should be vaned

as a “reasonable accommodation” in the case at hand. In airline mergers,

which necessaril, equire seniority integration, the Civil Aeronautics

Board (and later the Department of Transportation) for many years

imposed a procedure to arrive at a fair integration, and the courts

jealously guarded the finality of such seniority integration against attacks

by disgruntled employees because of the destabilizing effect of changes

to seniority order: “To automatically direct substantive arbitral review

of integration plans at the behest of individual employees who feel

their interests have been slighted would itself inject the very sort of

instability into airline consolidations that the CAB sought to avoid. . . .”

Airline Pilots Ass'n, Int'l v. Department of Transp., 880 F.2d 491, 496

(D.C. Cir. 1989). The CAB’s seniority integration procedures applied

to non-union employees as well as to employees covered by collective

bargaining agreements. Delta-Chicago & S. Merger, 16 C.A.B. 647,

655 (1952).

10

A departure from neutral seniority rules in order to favor

one person or group at the expense «f another can create a

permanent division and resentmeni !n che workforce, which is

especially troublesome in a labor-intensive customer service

industry. See NLRB v. Erie Resistor Corp., 373 U.S. 221, 231

(1963) (superseniority unlawful because it “creates a cleavage

in the plant continuing long after the strike is ended. Employees

are henceforth divided into two camps. ... This breach is

reemphasized with each subsequent layoff. ...”). Such a

division in the workforce can impair operations. See Rakestraw

v. United Airlines, Inc., 981 F.2d 1524, 1534 (7th Cir. 1992)

(ALPA members engaged in “guerilla warfare” against those

promised higher seniority. Restoring the pre-strike seniority

system “reduced ... the friction among pilots that was

hampering operations.”). Thus, for all of the foregoing reasons,

the stable operation of longstanding bona fide seniority systems

is of great importance to both employers and employees in the

Il. THE “REASONABLE ACCOMMODATION”

LANGUAGE OF THE ADA DOES NOT REQUIRE

AN EMPLOYER TO OVERRIDE A BONA FIDE

SENIORITY SYSTEM

The ADA prohibits an employer from discriminating

against a qualified individual with a disability by failing to make

“reasonable accommodations to the known physical or mental

limitations” of that individual. 42 U.S.C. § 12112(b)(5)(A).

The meaning of the key term, “reasonable

accommodation,” has been before the court in an earlier

seniority-related discrimination case. In Trans World

Airlines, Inc. v. Hardison, this Court held that the duty to

provide “reasonable accommodation” for religious beliefs

So ~

- - ~~ — — —— — — Dre ee

—.

~

under Title VII, 42 U.S.C. § 2000e-2(a)(1), does not require

an airline to take steps inconsistent with an otherwise bona

fide seniority system. The Court reasoned that “(without a

clear and express indication from Congress, we cannot agree

... that an agreed-upon seniority system must give way

when necessary to accommodate religious observances.”

432 US. at 79.

It would be anomalous to conclude that by

“reasonable accommodation” Congress meant

that an employer must deny the shift and job

preference of some employees ... in order to

accommodate or prefer the religious needs of

others, and we conclude that Title VII does not

require an employer to go that far.

Id. at 81. The Court in Hardison thus concluded that the

Statutory obligation to provide “reasonable accommodation”

for religious needs does not take precedence over a bona

fide seniority system.'' Simply stated, it is not a “reasonable

accommodation” to require alteration of a bona fide seniority

system to deny a position to a more senior employee by

creating a preference for an employee with a disability.

There is no basis in the language of the ADA which

supports — or even suggests — a different conclusion here.

The ADA defines “reasonable accommodation” in broad but

ambiguous terms:

The term “reasonable accommodation” may

include — (A) making existing facilities used by

11. That conclusion was reached independently of, but was

“supported by,” the special treatment of seniority systems under

Section 703(h) of Title VII. 432 U.S. at 81-82.

12

employees readily accessible to and usable by

individuals with disabilities; and (B) job

restructuring, part-time or modified work schedules,

reassignment to a vacant position, acquisition or

modification of equipment or devices, appropriate

adjustment or modifications of examinations,

training materials or policies, the provision of

qualified readers or interpreters, and other similar

accommodations for individuals with disabilities.

42 U.S.C. § 12111(9)(B) (emphasis added). Nothing in this

express language supports a mandatory preference for persons

with disabilities over the settled seniority rights and expectations

of other employees. While specifically mentioning

“reassignment” as a possible accommodation, Congress

carefully added the words “to a vacant position,” clearly

indicating that Congress did not require that an employer

“bump” other employees to create positions for the disabled. '”

Since abrogation of seniority would also impinge on the rights

of other employees, that course of action is simply not a

— accommodation to those expressly enumerated in the

12. The legislative language, and the legislative history

(see pp. 15-18 infra) are clear on this point. Courts have agreed that

there is no duty to create a new position for an employee with a disability

or to bump another employee from a job. See, e.g., Gile v. United Airlines,

Inc., 95 F.3d 492, 499 (7th Cir. 1996) (“An employer may be obligated

to reassign a disabled employee, but only to vacant positions; an

employer is not required to ‘bump’ other employees to create a vacancy

so as to be able to reassign the disabled employee.”).

13. Respondent conceded in his Brief in Opposition to the Petition

for Certiorari, p.14, that disabled employees who seek reassignment

(Cont'd)

13

A position is not “vacant” if other employees with

sufficient seniority have the right to hold the position and

choose to do so. Eckles v. Consolidated Rail Corp., 94 F.3d

1041, 1047 (7th Cir. 1996) (“[U]nder a seniority system like

that in place at Conrail, few positions are ever truly ‘vacant,’

in the sense of being unfilled . . . [A] “vacant position’ would

essentially be one that an employee could acquire with his

seniority and for which he could meet the job

requirements.”); Willis v. Pacific Mar. Ass'n, 236 F.3d 1160,

1165 (9th Cir. 2001) (light duty positions and transfer to

another Local were not “vacant” as to plaintiffs because other

workers with greater seniority were eligible for openings

before plaintiffs); Smith v. Midland Brake, Inc., 180 F.3d

1154, 1175 (10th Cir. 1999) (“an existing position would

not truly be vacant, even though it is not presently filled by

an existing employee, if under a collective bargaining

agreement other employees have a vested priority right to

such vacant positions.”).

This Court in Hardison required “ a clear and express

indication from Congress” as a pre-condition to intruding

upon a bona fide seniority system in the name of “reasonable

accommodation.” Legislating against this backdrop,

Congress used precisely the same phrase in the ADA,

omitting the sort of “clear and express indication” to which

Hardison referred. Instead, Congress affirmatively approved

transfers only to vacant positions.

(Cont'd)

into a position, but who are not next in line for the job under the union

contract, are in effect asking to ‘bump’ other employees who are

contractually entitled to the position. Because a reasonable

accommodation can not bump another, nondisabled employee, this

type oi transfer is not permitted.

l4

The ADA does not expressly mention seniority systems.

The Ninth Circuit below reasoned that because Title VII and

the Age Discrimination In Employment Act contain explicit

protection for seniority systems, the ADA’s lack of explicit

protection for seniority systems weighs heavily against the

implication of such protection. Thus, contrary to the

command of Hardison, the Ninth Circuit relied upon

statutory silence rather than “clear and express” statutory

language.'*

The Ninth Circuit also ignored the fact that the ADA’s

predecessor, the Rehabilitation Act, was also silent on

seniority systems, but had noretheless been construed, prior

to enactment of the ADA, to be consistent with the treatment

of seniority systems under Title VII and the ADEA.

The Rehabilitation Act, 29 U.S.C. § 794, had been held to

require “reasonable accommodation” for an employee with

a disability. Nonetheless, four Circuit courts had held that

“reasonable accommodation” under the Rehabilitation Act

and its regulations, 29 C.F.R. § 1613.702(f), did not require

exceptions to bona fide seniority systems even in the absence

of express statutory language.'* Since Congress did not

14. The legislative history of the ADA reflects Congressional

criticism of one aspect of the Court’s decision in Hardison, i.e., the

Court’s construction of the “undue hardship” language in EEOC

regulations. H.R. Rep. No. 101-485, pt. 2, at 68 (1990). It is especially

notable, then, that Congress did not criticize the other parts of the

Hardison decision which dealt with the “reasonable accommodation”

issue.

15. See Shea v. Tisch, 870 F.2d 786, 790 (1st Cir. 1989) (under

in contravention of collective bargaining agreement that awarded jobs

according to seniority-based bidding), Carter v. Tisch, 822 F.2d 465,

(Cont'd)

oo agree

Le

15

express disapproval of these decisions when it enacted the

ADA, “evaluation of congressional action . . . must take into

account its contemporary legal context.” Cannon v.

University of Chicago, 441 U.S. 677, 698-99 (1979)

(presuming that legislators are familiar with judicial decisions

construing comparable statutes). Indeed, the inference of

approval is stronger here, because Congress expressed a

preference that the ADA be interpreted and applied consistent

with the Rehabilitation Act. 42 U.S.C. § 12201(a).

While legislative history is not the equivalent of statutory

language, see Piper v. Chris-Craft Indus., 430 U.S. 1, 26

(1977) (“Reliance on legislative history in divining the

intent of Congress is, as has often been observed, a step to

be taken cautiously.”); United States v. Public Utils. Comm n

of Cal., 345 U.S. 295, 319 (1953) (Jackson, J. concurring)

(legislative history is not statutory language, is more like

“psychoanalysis of Congress”), the Ninth Circuit placed great

weight upon the scanty legislative history of the ADA.

The Senate and House Committee Reports on the ADA

contain a passage, set forth below, that is virtually identical,

except for the last sentence, in bold, which is in the House

Report only:

Reasonable accommodation may also include

reassignment to a vacant position.... The

Committee also wishes to make clear the

reassignment need only be to a vacant position —

“bumping” another employee out of a position to

create a vacancy is not required.

(Cont'd)

469 (4th Cir. 1987) (same); Daubert v. United States Postal Serv., 733

F.2d 1367 (10th Cir. 1984) (same); Jasany v. United States Postal Serv.,

755 F.2d 1244 (6th Cir. 1985) (same).

16

The [Rehabilitation Act] Section 504

regulations provide that “a recipient’s obligation to

comply with this subpart [employment] is not

affected by any inconsistent term of any collective

bargaining agreement to which it is a party.”

45 CFR 84.11(c). This policy also applies to the

ADA. Thus, an employer cannot use a collective

bargaining agreement to accomplish what it

otherwise would be prohibited from doing under [the

legislation]. For example, a collective bargaining

agreement that contained physical criteria which

caused a disparate impact on individuals with

disabilities and were not job-related and consistent

with business necessity could be challenged under

this [legislation].

The collective bargaining agreement could be

relevant, however, in determining whether a given

accommodation is reasonable. For example, if a

collective bargaining agreement reserves certain jobs

for employees with a given amount of seniority, it

may be considered as a factor in determining

whether it is a reasonable accommodation to assign

an employee with a disability without seniority to

the job. However, the agreement would not be

determinative on the issue.

H.R. Rep. No. 101-485, pt. 2, at 63 (1990) (language in

S. Rep No. 101-116, at 32 (1989) identical except that the last

sentence is omitted). '* The first paragraph quoted above from

16. In the entire quoted passage, Congress is referring to a

specific type of barrier to reassignment: not being qualified for the

position sought, either due to physical criteria or a seniority minimum

(Cont’d)

17

both House and Senate Reports was ignored by the Ninth

Circuit; it makes crystal clear that “bumping” of another

employee “is not required,” and that reassignment “need only

be to a vacant position.” The Ninth Circuit instead relied

upon the last two sentences, but failed to note that the Senate

Committee omitted the last sentence. Yet the omission of

the last sentence above from the Senate Report suggests that

the Senate Committee did not agree with the House on the

last sentence. At the very least these inconsistencies render

the Congressional intent unclear — and unable to bear the

weight placed upon it by the Ninth Circuit. The Ninth

Circuit’s decision rises or falls — not on the unambiguous

language of the statute, reinforced by both Congressional

Reports — but on a single contradictory sentence that appears

in only one of the Reports. Legislative history, especially

ambiguous legislative history, is not an acceptable substitute

(Cont'd)

(e.g., two years of experience as an apprentice welder before being

qualified to bid on a welder job). As the Seventh Circuit explained

in Eckles, 94 F.3d at 1050,

these standards should be evaluated for their legitimacy,

rather than merely accepted as automatically preempting

a particular reasonable accommodation. For example,

are the physical criteria “job-related and consistent with

business necessity”? The emphasis is on the theme that

a covered entity “cannot use a collective bargaining

agreement to accomplish what it otherwise would be

prohibited from doing” under the ADA. . . The language

about collective bargaining agreements being “relevant”

. appears in the context of this discussion about

reassignment to a vacant position for which the disabled

individual does not meet the pre-set job criteria.

(citation omitted)

18

for clear statutory language. See Buckhannon Bd. and

Care Home, Inc. v. West Va. Dep't of Health and Human

Res., 121 S. Ct. 1835, 1847 (2001) (Scalia, J. concurring)

(“If legislative history in general is a risky interpretive tool,

legislative history from only one legislative chamber . . . is

virtually worthless.”’)

A seniority system could be “relevant” without being

determinative only where there was either a question as to

the bona fides of the system or ambiguity in how the system

operated vis a vis the affected individuals. In the absence of

such questions, a bona fide seniority system clearly entitles

one person to the position. Respondent’s Opposition p. 14-

15, appears to admit that it is only the ambiguous seniority

system that permits an inquiry into the reasonableness of

accommodation. Respondent stated that “the courts of appeal

have attempted to reconcile union contracts with an

employer’s statutory duty to accommodate, and therefore

they closely scrutinize collective bargaining agreements to

determine whether any provision permits the reassignment.”

Respondent quotes Willis v. Pacific Mar. Ass'n, 236 F.3d at

1166, for the proposition that reassignment in violation of

seniority is not required by the ADA “where there is a direct

conflict between the proposed accommodation and the

collectively-bargained seniority rights of other employees.”

Op. Cert. at 14.

The decision below creates a mandatory preference, in

effect giving the employee with a disability “superseniority”

and elevating that employee over all other equally-qualified

and more senior employees. Such a result goes far beyond

the purpose of the ADA — to give persons with disabilities the

same opportunities available to others:

19

[T]he employer would be permitted to reject the

applicant with a disability and choose the other

applicant for reasons not related to the disability or

to the accommodation or otherwise not prohibited

by this legislation. In other words, the employer’s

obligation is to consider applicants and make

decisions without regard to an individual’s disability,

or the individual’s need for a reasonable

accommodation. But, the employer has no obligation

under this legislation to prefer applicants with

disabilities over other applicants on the basis of

disability.

H.R. Rep. No. 101-485, pt. 2, at 56 (1990). Accord Wernick v.

Federal Reserve Bank, 91 F.3d 579, 384-85 (2d Cir. 1996)

(“Congress intended simply that disabled persons have the same

opportunities available to them as are available to nondisabled

persons. [T]he Fed did not have an affirmative duty to provide

[plaintiff] with a job for which she was qualified; the Fed only _

had an obligation to treat her in the same manner that it treated

other similarly qualified candidates.”); Daugherty v. City of

El Paso, 56 F.3d 695, 700 (Sth Cir. 1995) (“we do not read the

ADA as requiring affirmative action in favor of individuals with

disabilities, in the sense of requiring that disabled persons be

given priority in hiring or reassignment over those who are not

disabled”). In EEOC v. Humiston-Keeling, Inc., 227 F.3d 1024

(7th Cir. 2000), Judge Posner forcefully rejected the argument

that the ADA requires preferential treatment for persons with

disabilities:

[T]he [EEOC] interprets the “reassignment” . . . to

require that the disabled person be advanced over a

more qualified nondisabled person, provided only

that the disabled person is at least minimally

20

qualified to do the job, unless the employer can show

“undue hardship,”. ... The fact that the disability

isn’t what makes the disabled person unable to

perform the job as well as the person who got it is,

in the Commission’s view, irrelevant. . . .

The interpretation requires employers to

give bonus points to people with disabilities,

much as veterans’ preference statutes do. ...

The Commission asserts that her unrelated disability,

a disability that put her at no disadvantage in

competing for an opening in an office job,

nevertheless entitled her to be given more

consideration than nondisabled workers. It is easy

to imagine situations in which ... one disabled

worker would be entitled to get a job ahead of a

worker with a more serious disability . . . [O]n the

Commission’s view there is a hierarchy of

protections for groups deemed entitled to protection

against discrimination, with the disabled being

placed ahead of the members of racial minorities.

227 F.3d at 1027. The Ninth Circuit here, 228 F.3d at 1118,

reasoned that some degree of preference is indeed implicit in

the ADA, because, if a person with a disability merely was

entitled to compete on the same basis as other employees, the

“reasonable accommodation” language would add nothing to

existing rights. In contrast, Judge Posner reasoned that “plenty

was left” of the duty to reasonably accommodate:

Without the reassignment provision in the statute,

an employer might plausibly claim that “reasonable

accommodation” refers td. efforts to enable\a

disabled worker to do the job for which he was

ere tat

21

hired or for which he is applying, rather than to

offer him another job. The reassignment provision

makes clear that the employer must also consider

the feasibility of assigning the worker to a

different job in which his disability will not be

an impediment to full performance, and if the

reassignment is feasible and does not require the

employer to turn away a superior applicant, the

reassignment is mandatory. That is not the same

thing as requiring the employer to give him the

job even if another worker would be twice as good

at it, provided only that this could be done without

undue hardship to the employer.

227 F.3d at 1027-28.

lll. THE ADA PROVIDES NO BASIS TO

DISTINGUISH BETWEEN UNION AND NON-

UNION SENIORITY SYSTEMS.

The ADA provides no basis for a distinction between

union and non-union seniority systems in determining the

scope of “reasonable accommodation.” There is no dispute

that the seniority system here is bona fide, even though it

was created by employer policy, applicable to non-union

employees, rather than through collective bargaining.

Nine circuit courts of appeal, including the Ninth

Circuit,'’ have held that “reasonable accommodation” does

17. In Willis v. Pacific Mar. Ass'n, 162 F.3d 561 (9th Cir. 1998),

op. withdrawn, op. replaced, 236 F.3d 1160 (9th Cir. 2001), a panel

of the Ninth Circuit distinguished the en banc decision here as

relating only to non-union seniority systems and held that the ADA

did not require an employer to deviate from a seniority system in a

(Cont'd)

22

not require alteration of rights under a seniority system

embodied in a collective bargaining agreement;'* no circuits

have held to the contrary. The court below is the only court

of appeal to reach a different conclusion as to non-union

seniority systems. In contrast, one circuit has held, and two

have stated in dicta, that the same scope of accommodation

applies to both union and non-union seniority systems. In

(Cont'd)

collective bargaining agreement as reasonable accommodation. While

the Ninth Circuit is the authoritative interpreter of its own precedent,

the reasoning of the en banc opinion appears to be that no seniority

system, whether collectively bargained or otherwise, should be a

per se bar to reasonable accommodation. The en banc opinion did

not focus on the differences between a collectively bargained

seniority policy and a seniority policy for non-union employees; it

merely stated, in a conclusory fashion, that “[h]Jere, where there is

no collective bargaining agreement, no bargained for rights are

involved. It would seem that the seniority system without more should

not bar reassignment.” 228 F.3d at 1119.

18. See Willis, supra, 236 F.3d 1160 (9th Cir. 2001); Boersig v.

Union Elec. Co., 219 F.3d 816 (8th Cir. 2000), cert. denied, 121 S.

Ct. 857 (2001); Davis v. Florida Power & Light Co., 205 F.3d 1301,

1307 (11th Cir.), cert. denied, 121 S. Ct. 304 (2000) (“join{ing] eight

other circuits which have held that an accommodation that

contravenes the seniority rights of other employees under a collective

bargaining agreement is unreasonable as a matter of law.”); Feliciano

v. Rhode Island, 160 F.3d 780, 786-87 (1st Cir. 1998); Aldrich v.

Boeing Co., 146 F.3d 1265, 1272 n.5 (10th Cir. 1998), cert. denied,

526 U.S. 1144 (1999); Cassidy v. Detroit Edison Co., 138 F.3d 629,

634 (6th Cir. 1998); Kralik v. Durbin, 130 F.3d 76, 81, 83 (3d Cir.

1997); Foreman v. Babcock & Wilcox Co., 117 F.3d 800, 810 (Sth

Cir. 1997); Eckles v. Consolidated Rail Corp., 94 F.3d 1041, 1051

(7th Cir. 1996); Benson v. Northwest Airlines, Inc., 62 F.3d 1108,

1114 (8th Cir. 1995); Milton v. Scrivner, Inc., 53 F.3d 1118, 1125

(10th Cir. 1995).

Pe A ee

~~

23

EEOC v. Sara Lee Co., 237 F.3d 349, 355 (4th Cir. 2001),

the Fourth Circuit held that “{a]ll workers — not just those

covered by collective bargaining agreements — rely upon

established company policies. The ADA does not require

employers to disrupt the operation of a defensible and

nondiscriminatory company policy in order to provide a

reasonable accommodation.” In Smith v. Midland Brake, Inc.,

180 F.3d 1154, 1176 (10th Cir. 1999), the court stated

an industry may have a well entrenched seniority

system which, even though not rooted in a

collective bargaining agreement, is so well

established that it gives rise to legitimate

expectations by other, more senior employees to

a job that the disabled employee might desire.

Requiring an employer to disrupt and violate any

such well-established reasonable expectations of

seniority rights in order to favor a disabled

employee in a job reassignment could, at

least under some circumstances, constitute a

fundamental and unreasonable alteration in the

nature of the employer’s business.

Lastly, in Foreman v. Babcock & Wilcox Co., 117 F.3d 800,

810 (Sth Cir. 1997), the Fifth Circuit stated “[E]ven if there

were no CBA in place, [the employer] would not be obligated

to accommodate Foreman by reassigning him to a new

position.”

The Ninth Circuit’s decision here creates two classes of

workers who have different protections for their seniority

rights based upon their decision whether or not to choose

union representation. No other court has interpreted a Federal

civil rights statute to create such a distinction. While federal

24

labor law provides a framework for collective bargaining and

for the enforcement of collective bargaining agreements, it also

preserves and protects the employees’ freedom of choice on

whether or not to choose union representation. Trans World

Airlines, Inc. v. Independent Fed'n of Flight Attendants, 489

U.S. 426, 440 (1989) (“employees’ freedom ‘to organize and

to make choice of their representatives without . . . coercive

interference and pressure . .. was continued and made more

explicit by the amendment of 1934’ ” (citation and internal

quotations omitted)). Since such freedom of choice is the stated

policy of federal labor law, it would be anomalous if a Federal

anti-discrimination law, such as the ADA, were interpreted to

accord, sub silentio, greater protection to the seniority nghts of

union represented employees than to those of non-union

employees.'* Such a result, of course, would also mean that

19. While collective bargaining agreements are enforceable

under federal labor law, many courts have held that employer policies

and promises to non-union employees may, in appropriate

circumstances, also create enforceable contract obligations under

state law. E.g. White v. National Steel Corp, 938 F.2d 474 (4th Cir.

1991) (employee may pursue damages for breach of promise to permit

employees to return to former jobs with seniority); Anderson v. Ford

Motor Co., 803 F.2d 953 (8th Cir. 1986) (permitting state law claims

by employees promised they would not be bumped by previously

laid-off individuals on preferential hiring list); Gorrill v. Icelandair/

Flugleidir, 761 F.2d 847 (2d Cir. 1985) (airline manual that set forth

seniority rights limits air carrier’s right to discharge senior pilots in

favor of junior pilots). Even under a collective bargaining agreement,

moreover, seniority rights are not immutable; they are negotiable

with the union, which has a broad range of discretion. Ford Motor

Co. v. Huffman, 345 U.S. 330, 339-40 (1953) (collective bargaining

representative acts within its authority when it agrees to seniority

system giving credit for pre-employment military service “even to

the prejudice of veterans [with post-employment military service]

otherwise entitled to greater seniority.”). Accord, Rakestraw, supra.

(Cont'd)

25

employees with disabilities at a unionized employer receive

less protection under the ADA than their counterparts at non-

union employers. Nothing in the ADA supports such a result.

Judicial creation of a special treatment for collectively

bargained seniority systems under the ADA also would be

inconsistent with other Federal civil rights laws. For example,

when it allowed employers “to apply different . . . privileges

of employment pursuant to a bona fide seniority or merit

system,” 42 U.S.C. § 2000e-2(h),”” Congress clearly could

(Cont'd)

The proper question here, however, is not whether a seniority system

is either immutable or legally enforceable, but whether the system

is “bona fide,” i.e., that it is in fact a uniformly applied seniority

system which creates legitimate employee expectations and reliance

interests. There is no dispute here that the US Airways seniority

system was bona fide.

20. A “bona fide” seniority system has been defined as “one

that was created for legitimate purposes, rather than for the purpose

of discrimination.” Eckles v. Consolidated Rail, 94 F.3d 1041, 1046 |

n.7 (7th Cir. 1996). Accord, Teamsters v. United States, 431 U.S.

324 (1977); Pullman-Standard v. Swint, 456 U.S. 273, 279 n.8

(1982); James v. Stockham Valves & Fittings Co., 559 F.2d 310

(Sth Cir. 1977) (four factors determining whether seniority system

is bona fide are (1) whether it discourages all employees equally

from transferring between seniority units; (2) whether the seniority

units are in the same bargaining units (if separate, whether that

structure is rational and in conformity with industry practice);

(3) whether the seniority system had its genesis in racial

discrimination; and (4) whe*>er the system was arrived at and has

been maintained free from any illegal purpose); Boersig v. Union

Elec. Co., 219 F.3d 816 (8th Cir. 2000) (seniority system is bona

fide even though promotional system is based on departmental

seniority rather than total length of employment, because there was

no evidence promotional system was designed to discriminate against

the disabled), cert. denied, 121 S. Ct. 857 (2001).

26

have, but did not, limit this protection to collectively

bargained seniority systems; this section applies to any bona

fide seniority system. Williams v. New Orleans S.S. Ass'n,

673 F.2d 742, 754 n.19 (Sth Cir. 1982) (“there is nothing in

Title VII, its legislative history, nor the Teamsters case to

indicate that a system unilaterally adopted by the employer

can not be bona fide.”’).

That a current employee expects to have certain

seniority rights because of a plan adopted at the

employer’s initiative, as opposed to a plan

negotiated between labor and management, in no

way diminishes that employee’s expectations and

it is those expectations which Section 703(h) was

designed to protect.

EEOC v. E.J. duPont de Nemours & Co., 445 F. Supp. 223,

249 (D. Del. 1978). Similarly, when Congress enacted the

Age Discrimination in Employment Act (ADEA), it included

section 4(f)(2), which stated “[I}t shall not be unlawful for

an employer . . . to observe the terms of a bona fide seniority

system .. .” 29 U.S.C. § 623(f)(2)(A). The term “bona fide”

clearly is not limited to collectively bargained seniority

systems and there is no legal or policy reason under the ADA

why bona fide seniority systems should be limited to those

created by collective bargaining agreements.

27

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted,

RoBerRT P. WARREN JOHN J. GALLAGHER

Davi A. BERG Counsel of Record

Air TRANSPORT ASSOCIATION MARGARET H. SPuRLIN

Or AMERICA, INC. PauL, HASTINGS, JANOFSKY

1301 Pennsylvania Ave., N.W. & WALKER LLP

Suite 1100 1299 Pennsylvania Ave., N.W.

Washington, D.C. 20004-1707 Tenth Floor

(202) 626-4000 Washington, D.C. 20004-2400

(202) 508-9500

Ropert J. DeLucia

AIRLINE INDUSTRIAL RELATIONS

CONFERENCE

1300 19th St. N.W.

Washington, D.C. 20036

(202) 861-7550

Counsel for Amici Curiae

Air Transport Association of America, Inc. and

Airline Industrial Relations Conference