Petition for Writ of Certiorari — Delta Air Lines, Inc. v. International Brotherhood of Teamsters

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sob 1899 | FILED

| MAY 20 807

IN THE && phere

Supreme Court of the United States

OCTOBER TERM, 1986

De_ta AIR LINES, INC., and WESTERN AIR LINES, INC.,

Petitioners,

VS.

INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,

AIRLINE DIVISION, and LOCAL UNION No. 2707, affiliated

with the INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

and LocaL UNION No. 2747, affiliated with the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, and AIR

TRANSPORT EMPLOYEES,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Df Appeals

For The Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

WILLIAM J. KILBERG JAMES W. CALLISON

Counsel of Record ROBERT S. HARKEY

Scott A. KRUSE WALTER A. BRILL

H. JOSEPH GORE Law Department

GIBSON, DUNN & CRUTCHER Delta Air Lines, Inc.

Suite 900 Hartsfield Atlanta Int’]

1050 Connecticut Avenue, N.W. Airport

Washington, D.C. 20036 Atlanta, Georgia 30320

(202) 955-8500 - (404) 765-2387

JEFFERSON D. Kirsy, III Counsel for Petitioners

MICHAEL H. CAMPBELL

PauL D. JONES

ForD & HARRISON

600 Peachtree at the Circle Building

1275 Peachtree Street, N. E.

Atlanta, Georgia 30309

(404) 888-3800

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

QUESTIONS PRESENTED

1. Whether a federal court has jurisdiction to order

arbitration of a contractual grievance that raises is-

sues of employee representation which, under the

Railway Labor Act, are within the exclusive jurisdic-

tion of the National Mediation Board.

2. Whether, under the Railway Labor Act, a griev-

ance which seeks enforcement of a successor clause

in a union contract so as to require a merged airline

to recognize the union as the representative of a mi-

nority group of employees after a merger raises rep-

resentation issues within the exclusive jurisdiction of

the National Mediation Board.

LIST OF PARTIES

The names of all parties to the proceedings in the

United States Court of Appeals for the Ninth Circuit

appear in the caption of the case in this Court, in-

cluding Western Air Lines, Inc. It should be noted,

however, that Western Air Lines, Inc. ceased to exist

when it was merged into Delta Air Lines, Inc. on

April 1, 1987.!

' Pursuant to Supreme Court Rule 28, the following is a listing

of all parent companies, subsidiaries (except wholly owned sub-

sidiaries) and affiliates of Delta Air Lines, Inc.: Atlantic South-

east Airlines, Inc.; Comair, Inc.; and Gatwick Handling, Ltd.

| i oS a cet Fe a at

iil

TABLE OF CONTENTS

QUESTIONS PRESENTED. ...............cccccccsesesesesees

LIST OF

Nee ee cuaschsdiideuesunederastuivboniennts

BE SP IVE BIOTA | Sexincsvassessccsecensevssscctcancenets

BM PE FRU EEIOIE ID vcsecsscescecescsenescesccscncere

TN ia vacs sce alnsacebsisbesetencesecsssensectnsecennnte

MER AES SEGY BEEP diliiseecnssesesnscscasnnssssacsuananacs

STATEMENT OF THE CASE ............c eee.

WUE, MNO cscacnacaccnscacssecarscnsenssestenes

IT. The Proceedings Below .............ccccccsscceseeeees

III. The Proceedings Before This Court ............

REASONS FOR GRANTING THE WRIT .............

'. The Decision Below Creates A _ Conflict

Among The Courts Of Appeals Regarding

The Proper Scope Of Jurisdiction Of The

Federal Courts In Representation Disputes

Under The Railway Labor Act ........0000000.

The NMB Has Exclusive Jurisdiction Of

All Employee Representation Issues Un-

der The Railway Labor Act And Every

Other Court Of Appeals That Has Ruled

On The Issue Has Concluded That The

Courts Do Not Have Jurisdiction In Cases

That Raise Questions Of Representation,

Regardless Of The Context In Which

Ti caaeunaanaeeae inns

- The Ninth Circuit’s Decision In The In-

stant Case Conflicts With Every Other

Appellate Decision Regarding The Effect

Of Collective Bargaining Agreements On

Employee Representation Issues In Air-

se auilieaneneein

ill

onuwnmnr re rw wo Fe

C. The Ninth Circuit Relied Upon Inapposite

Authority To Reach Its Erroneous Deci-

Cs etiaciini noccra disabieneenbabe

I]. The Decision Below Directly Conflicts With

The Railway Labor Act And The Statutory

Authority Of The National Mediation

NUE: ctacsindacdclaibaakassteeJesias acu deamiebaameananiaoudicicen

III. This Case Presents Issues Of National Policy

Critical To The Vital Air And Rail Trans-

TEE - INNO © sicnciicesndansstitbsarsccmisrarcerss

SIO ENE > ssckuieictinwipnareienrsoxdessncehiniaatioonsenlvaicnrainka

FEE Ee Retihistiiakesiaintcmectaneesivniccaatinbiasicah

A. Opinion of the Ninth Circuit, JBTCWHA, Lo-

cal Union No. 2702 v. Western Air

Lines, Inc., et al., 813 F.2d 1359 (9th

Wt ME Bh TIRED. Srndecutincictnetanccasinenses

B. Order of the Ninth Circuit, IBTCWHA, Local

Union No. 2702 v. Western Air Lines,

Inc., et al., Nos. 87-5657/5667 (9th Cir.

PE: ic: SUMENEE chaniscstandeininttennsbsbansanecns

C. Interim Order of the Ninth Circuit,

IBTCWHA, Local Union No. 2702 v.

Western Air Lines, Inc., et al., No. 87-

5657 (9th Cir. March 17, 1987) ...........

D. Interim Order of the Ninth Circuit, Air

Transport Employees v. Western Air

Lines, Inc., No. 87-5667 (9th Cir. March

a SE circ lat ann dcans santcsdmadnipenccauiobesacs

E. Opinion in International Brotherhood of

Teamsters, et al. v. Western Air Lines,

Inc., et al., No. CV 86-7921 JMI (Px)

(C.D. Cal. February 138, 1987) .............

F. Opinion in Air Transport Employees v. West-

ern Air Lines, Inc., No. CV 86-8032 JMI

(Bx) (C.D. Cal. February 13, 1987) .....

G. Order of Circuit Justice Sandra Day O’Con-

nor in Western Air Lines, Inc., et al. v.

IBTCWHA, Local Union No. 2702, et al.,

No. A-716 (April 1, 1987) ....................

A-1

B-1

C-1

D-1

E-1

F-]

G-1

. Amended Order of Circuit Justice Sandra

Day O’Connor in Western Air Lines,

Inc., et al. v. International Brotherhood

of Teamsters and Air Transport Em-

ployees, No. A-716 (April 2, 1987) .......

Opinion of Circuit Justice Sandra Day O’Con-

nor in Western Air Lines, Inc. and Delta

Air Lines, Inc. v. International Broth-

erhood of Teamsters and Air Transport

Employees, No. A-716 (April 2, 1987)

Order in Association of Flight Attendants,

AFL-CIO v. Western Air Lines, Inc., No.

87-7040 (D.C. Cir. March 31, 1987) .....

Memorandum Opinion and Order in Associ-

ation of Flight Attendants, AFL-CIO ».

Western Air Lines, Inc., No. 87-0040 (D.

EG. PORCURIY TR, TITY devccnssdecsnsesancss

Opinion in International Brotherhood of

Teamsters, Airline Division, et al. v. Pa-

cific Southwest Airlines, et al., No. C-

87-0402 MHP (N.D. Cal. March 20,

BOG cavnssssihstasiarboaeuo

Railway Labor Act, §§ 2, Fourth; 2, Ninth:

201; 45 U.S.C. §§ 152, Fourth; 152,

POMS BE | cisicdcincrmcemdie ane

H-1

I-]

J-1

K-1

TABLE OF AUTHORITIES

CASES:

Aircrast Mechanics Fraternal Association v. United

Airlines, Inc., 406 F. Supp. 492 (N.D. Cal.

MOTE) ccsiassecssssistsssesntasevassamaeaseaaemmaasigtns

Air Line Employees Association v. Republic Air-

Page

lines, Inc., 798 F.2d 967 (7th Cir.), cert. denied,

__.. U.S. —., 107 S.Ct. 458 (1986) ....... 11,12,13,14

Air Line Pilots Association v. Texas Interna-

tional Airlines, Inc., 656 F.2d 16 (2d Cir.

TOGD) cicccnsccisssviasvnscssincscesieaaeaeannaenaen

Allegheny-Mohawk Merger Case, 59 C.A.B. 22

(1OTR) — acoversssscsseccosceiecshasaciecnimansuctaunmumennensanines

Association of Flight Attendants, AFL-CIO v. West-

ern Air Lines, Inc., No. 87-0040 (D. D.C. Feb-

FUATY ZO, TGST) — .crcoccsssecccssonscscssascasssesensenssecese

Association of Flight Attendants, AFL-CIO v. West-

ern Air Lines, Inc., No. 87-7040 (D.C. Cir.

Biorehs BR, BGBT) sccexccscerceseniscessmisetionsnaiaitaes

Brotherhood of Railway and Steamship Clerks v.

United Air Lines, Inc., 325 F.2d 576 (6th Cir.

1963), cert. dismissed, 379 U.S. 26 (1964)

Brotherhood of Railway and Steamship Clerks v.

Non-Contract Employees, 380 U.S. 650

(TQGB) — cnccccbicsececcscncacescesecaunscccctncssunaunbentanensunes

Carpenters’ Local Union No. 1478 v. Stevens, 743

F.2d 1271 (9th Cir. 1984). cert. denied, 471

U.S. 1078 (UGB vecccscecaerucuaieae

Division No. 14, Order of Railway Telegrophers v.

Leighty, 298 F.2d 17 (4th Cir.), cert. denied,

906 U.S. GEG CIRRD ssceciecctsiceemnrntencenen

Flight Engineers International Association v. East-

ern Air Lines, Inc., 359 F.2d 303 (2d Cir.

BOG) .ncecctskshstnisksotsareseadennbeneees

Flight Engineers International Association v. East-

ern Air Lines, Inc., 311 F.2d 745 (2d Cir.),

cert. denied, 373 U.S. 924 (1963) ..............

11,

vii

Table of Authorities Continued

Page

General Committee of Adjustment of Brotherhood of

Locomotive Engineers v. Missouri-Kansas-Texas

Ratlroad, 320 U.S. 323 (1943) — ................00008 9

General Committee of Adjustment v. Southern Pa-

cifie Co., 320 U.S. 338 (1943) ...............cc000e. 9,19

International Association of Machinists v. North-

east Airlines, Inc., 536 F.2d 975 (1st Cir.),

cert. denied, 429 U.S. 961 (1976) .........0..... 11,16,19

International Brotherhood of Teamsters, Airline Di-

vision, v. Pacific Southwest Airlines, et al., No.

C87-0402 MHP (N.D. Cal. March 20, 1987) pa. 18

International Brotherhood of Teamsters v. tn

International Airlines, Inc., 717 F.2d 157 (5th

Gies IIE - itnctccisenenaiacbeipdaccsceidasenmianianionn 11,14,15,22

Local Lodge No. 1266 v. Panoramic Corp., 668 F.2d

Oe EEE Wat. HIE’. scdisvbisasatssanscacstsosumaniiicnce 18

New York Central Railroad Co., 1 N.M.B. 197

GRIPE: \ enalsscistananpiaieldlicitlestannaisiiibhasibenadiatae sia Madea 21

Northwest Airlines, Inc., 13 N.M.B. 399 (1986) .... 10,22

Pennsylvania Railroad Co., 1 N.M.B. 23 (1937).... 9

Railway Express Agency, 4 N.M.B. 227 (1964) ... 21

Republic Airlines, Inc., 8 N.M.B. 49 (1980) ........... 10,22

Ruby v. American Airlines, Inc., 323 F.2d-248 (2d

Cir. 1963), cert. denied, 376 U.S. 913

| ROR EE He ROR LIE, Se ALAS IN aes eee Dna 18,19

Seaboard Coast Line Railroad Co., 6 N.M.B. 63

EISEN UTIED ~~ esistiseninpnussbitadedeeeninicedeaspshaiericdetnanincgnickdahaiiela tai date alain: 21

Summit Airlines v. Teamsters, 628 F.2d 787 (2d

ats EE avepupceatiiieentabnieabitadecaiiodiaiiass 14

Switchmen’s Union of North America v. National

Mediation Board, 320 U.S. 297 (1943). ........ 9

Trans World Airlines, Inc./Ozark Airlines, 14

N.M.B. 218 (April 10, 1987) ...................... 10,2223

Vili

Table of Authorities Continued

Page

STATUTES:

29 U.S.C. § 159(b), National Labor Relations Act

SEER; dusisbabcansuedinssgdemiastinbnapakamssbhésamieindmaduhassiabation 20

45 U.S.C. § 152 Fourth, Railway Labor Act § 2

ig RRO Ree n OR en anptie” "TRAE Tar SRC ee Ree 2,9,21

45 U.S.C. § 152 Ninth, Railway Labor Act § 2

perenne eat Gentsyeurme 92 sete emt Mabe eR 2,9,23

45 U.S.C. § 156, Railway Labor Act § 6_........... 8

45 U.S.C. § 181, Railway Labor Act § 201 _......... 2,8

45 U.S.C. § 184, Railway Labor Act § 204 ......... 8

Airline Deregulation Act of 1978, Public L. No. 95-

504, 92 Stat. 1705 (1978) (amending Federal

Aviation Act of 1958, 49 U.S.C. §§ 1301-1542

SNIEET LackscnadainaancnAnnsnasnitabaipniticnudtaneniehubibiatidaie +)

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1986

DELTA AIR LINES, INC., and WESTERN AIR LINES, INC.,

Petitioners,

vs.

INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

CHAUFFEURS, WAREHOUSEMEN and HELPERS OF AMERICA,

AIRLINE DIVISION, and LOCAL UNION No. 2707, affiliated

with the INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

and LocAL UNION No. 2747, affiliated with the

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, and AIR

TRANSPORT EMPLOYEES,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

Petitioner, Delta Air Lines, Inc., respectfully prays

that a Writ of Certiorari issue to review the opinion

and judgment of the United States Court of Appeals

for the Ninth Circuit entered in the proceedings below

on April 1, 1987.

eeeeO

OPINIONS BELOW

A copy of the opinion of the Ninth Circuit Court

of Appeals, entered on April 1, 1987, which is re-

ported at 813 F.2d 1359, is attached hereto as Ap-

pendix A. A copy of the circuit court’s preliminary

order of March 31, 1987, is attached hereto as Ap-

pendix B.

The opinion and judgment of the court of appeals

reversed the judgments of the United States District

Court for the Central District of California in two

cases that were consolidated on appeal. Copies of the

orders of the district court, which are unreported, are

attached hereto as Appendices E and F.

JURISDICTION

The opinion and judgment of the Court of Appeals

for the Ninth Circuit was rendered in this case. on

April 1, 1987. This Petition for a Writ of Certiorari

is filed within ninety days of that date, as required

by 28 U.S.C. § 2101(c) and Rule 20.2 of the Supreme

Court Rules. The jurisdiction of the Supreme Court

is invoked pursuant to 28 U.S.C. § 1254(1).

STATUTE INVOLVED

The statute involved in this case is the Railway

Labor Act, 45 U.S.C. §§ 151-188, and in particular

§§ 152, Fourth and Ninth, and 181, copies of which

are set forth in Appendix M.

STATEMENT OF THE CASE

I. The Relevant Facts

This case arises from actions filed by two labor

unions, the Air Transport Employees (‘‘ATE’’) and

the International Brotherhood of Teamsters and two

of its locals (‘‘IBT’’), the collective bargaining repre-

sentatives for some of the employees of Western Air

Lines, Inc. (““Western’’) prior to the merger of Western

into Delta Air Lines, Inc. (‘Delta’) on April 1, 1987.

In those actions the unions sought to compel arbitration

of grievances under their labor agreements with West-

ern, alleging the breach of successor clauses in con-

nection with the then-proposed merger of Western into

Delta. The unions alleged that Western violated those

clauses by failing to secure Delta’s agreement to be

bound by the unions’ contracts after the merger was

completed. Western refused to arbitrate these griev-

ances on the grounds that they raised employee rep-

resentation issues within the exclusive jurisdiction of

the National Mediation Board (‘““NMB’’).

The unions were certified by the NMB as the bar-

gaining representative for various crafts or classes of

Western employees. The ATE represented the office,

clerical, fleet and passenger service craft or class at

Western, and the IBT represented the Western em-

ployees in separate crafts or classes consisting of me-

chanics and related employees, stock clerks and flight

instructors. Both unions had successor provisions in

their collective bargaining agreements with Western

which the unions contended required Western to bind

Delta to those labor agreements. .

In most of the recognized crafts or classes repre-

sented by the unions, Delta had approximately three

times as many employees as Western. Those Delta

employees have opted to have no collective bargaining

representative. Thus, after the merger, a large ma-

jority (approximately 75%) of most crafts or classes

would be (and ultimately was) made up of original

Delta employees who have never chosen to be rep-

resented by a labor union.

On September 9, 1986, Western and Delta entered

into an Agreement and Plan of Merger (“Merger

Agreement”) providing for the acquisition of Western

by Delta. The transaction was approved by the De-

partment of Transportation (“DOT’’) on December 11,

1986 and by the shareholders of the two companies

on December 16, 1986. The first step toward the

merger, the transfer of the Western stock to Delta,

occurred on December 18, 1986. After that initial

step, Western was a wholly-owned subsidiary of Delta

which existed as a separate corporation and was op-

erated as a separate carrier. The second and final

step was the legal merger of Western into Delta on

April 1, 1987, at which time operations were com-

bined, and Western ceased to exist.

In the Merger Agreement, the parties agreed that

Western would honor its collective bargaining agree-

ments as long as it continued operating as a separate

carrier. Delta assured all Western employees that they

would be employed by Western after the acquisition

and that they were likely to be offered positions by

Delta after the April 1 merger. Later, Delta did offer

post-merger jobs to all Western permanent non-officer

employees. Since the wages paid by Delta were sig-

nificantly higher than those earned by Western em-

ployees in each of the affected crafts or classes, Delta

gave substantial pay increases to most Western em-

ployees after the merger.

In the Merger Agreement, Delta also agreed to

provide Western employees with labor protective pro-

visions (“‘LPP’s’”’) at least as favorable as the standard

LPP’s imposed by the Civil Aeronautics Board

(“CAB’’) in the Allegheny-Mohawk Merger Case, 59

C.A.B. 22 (1971). The LPP’s require continuation of

certain fringe benefits, displacement and dismissal al-

lowances for employees losing their jobs or taking

lesser-paying jobs, payment of moving and related

costs for employees required to move, integration of

seniority lists in a fair and equitable manner and es-

tablishment of a binding arbitration procedure for any

dispute pertaining to the LPP’s. Delta was the first

carrier voluntarily to agree to be bound by those pro-

visions in a merger since the DOT (which succeeded

to the CAB’s jurisdiction over airline mergers under

the Airline Deregulation Act of 1978, Pub. L. No. 95-

504, 92 Stat. 1705 (1978) (amending Federal Aviation

Act of 1958, 49 U.S.C. §§ 1301-1542 (1982)), ceased

imposing LPP’s following deregulation of the airline

industry.

II. The Proceedings Below

In separate actions commenced in the United States

District Court for the Central District of California,

the unions sought orders compelling Western to ar-

bitrate their claims that Western was required to bind

Delta to the unions’ collective bargaining agreements.

The district court found that the issues raised by

these arbitration claims involved representation and

were exclusively committed, under the Railway Labor

Act, to the jurisdiction of the NMB. Accordingly, the

district court held that it lacked subject matter ju-

risdiction over the unions’ actions and dismissed them.

(App. E-1, F-1) Subsequently, the unions appealed

and the ATE filed a motion for an order compelling

arbitration pending appeal. The IBT moved for an

expedited appeal but did not seek a similar arbitration

order.

On March 17, 1987, the Court of Appeals for the

Ninth Circuit granted the ATE’s request for an in-

junction compelling arbitration pending appeal, con-

strued the IBT motion for expedited appeal as a

motion for an order compelling arbitration pending

appeal and, as construed, granted the IBT motion.

(App. C-1, D-1) Delta and Western sought recon-

sideration and moved the circuit court to expedite and

decide the cases before the long-planned merger was

to be consummated on April 1. The circuit court

granted the motion for expedited appeal and set oral

argument for March 30. The unions then moved the

circuit court to enjoin the merger. In papers filed with

the circuit court and at the oral argument Delta and

Western pointed out the staggering hardships to the

two companies, their employees and the public that

would result from any such last-minute injunction

which might delay the merger, including the fact that

the Federal Aviation Administration had indicated

that it might find it necessary to close down the

Western operation because of its concern that West-

ern could not continue to operate independently after

April 1.

On March 31, 1987, at approximately 8:00 P.M.,

Eastern Standard Time, the Ninth Circuit issued an

order which, among other things, reversed the district

court, ordered arbitration of the grievances, and en-

joined the Delta-Western merger, which was to be

completed the following morning. (App. B-1) On

April 1, 1987, the Ninth Circuit issued its opinion

setting forth the reasons for its order. (App. A-1)

Despite the unions’ claims that Western was required

to bind Delta to the unions’ collective bargaining

agreements, the circuit court did not view the unions’

claims as raising representation issues involving Delta.

813 F.2d at 1362. Rather, relying on authority under

the National Labor Relations Act, which does not

apply to the airline industry, the circuit court held

that the unions’ claims were matters for arbitration

and not within the exclusive jurisdiction of the NMB.

Id. at 1363. The circuit court did so while expressly

declining to decide whether an arbitrator could validly

order representation by a union. Jd.

III. The Proceedings Before This Court

In view of the irreparable harm faced by Delta and

Western, their employees and the traveling public as

a result of the eleventh-hour injunction granted by

the Ninth Circuit, an emergency application for stay

of the Ninth Circuit’s order and for vacation of its

injunction was filed with the Honorable Sandra Day

O’Connor, the Circuit Justice for the Ninth Circuit.

On April 1, 1987, at approximately 2:15 A.M., Justice

O’Connor granted the stay, which will terminate au-

tomatically if certiorari is denied. (App. G-1)

On April 2, 1987, Justice O’Connor issued a written

opinion (App. I-1), noting that the reasoning of every

other court of appeals that had ruled on the issues

presented in this case created grave doubt concerning

the validity of the Ninth Circuit’s decision. As the

great weight of the caselaw favored the position of

Delta and Western, Justice O’Connor found that:

The Ninth Circuit’s divergence from this line

of Court of Appeals decisions leads me to

find it very likely that at least four Justices

would vote to grant certiorari, and that the

applicant is likely to prevail on the merits.

Slip. op. at 6 (App. I-6).

The unions thereafter each filed motions to vacate

the stay issued by Justice O’Connor. The full Court,

with Justice Stevens not participating, denied the

unions’ motions on April 6, 1987.

REASONS FOR GRANTING THE WRIT

I. THE DECISION BELOW CREATES A CONFLICT

AMONG THE COURTS OF APPEALS REGARDING

THE PROPER SCOPE OF JURISDICTION OF THE

FEDERAL COURTS IN REPRESENTATION DIS-

PUTES UNDER THE RAILWAY LABOR ACT

A. The NMB Has Exclusive Jurisdiction Of All Employee

Representation Issues Under The Railway Labor Act

And Every Other Court Of Appeals That Has Ruled On

The Issue Has Concluded That The Courts Do Not Have

Jurisdiction In Cases That Raise Questions Of Repre-

sentation, Regardless Of The Context In Which They

Arise

The Railway Labor Act (““RLA”’), 45 U.S.C. §§ 151-

163, regulates labor relations of the nation’s railroads

and, through Title II, 45 U.S.C. §§ 181-188, air car-

riers. The RLA defines three classes of labor disputes

and establishes a different dispute resolution mech-

anism for each. “Minor” disputes are those which

arise in connection with the application or interpre-

tation of collective bargaining agreements. Minor dis-

putes are subject to arbitration by a System Board

of Adjustment. 45 U.S.C. § 184. “‘Major’’ disputes

involve the formation of collective bargaining agree-

ments. 45 U.S.C. §§ 156, 181. ‘“‘Representation” dis-

putes involve the determination of appropriate ‘‘crafts

or classes” of employees for collective bargaining pur-

poses and the selection of collective bargaining rep-

resentatives. 45 U.S.C. §§ 152, Fourth and Ninth,

181.

Employee representatives under the RLA are cho-

sen by the majority of any craft or class, 45 U.S.C.

§ 152, Fourth. The NMB has exclusive jurisdiction of

all disputes regarding employee representation, 45

U.S.C. § 152, Ninth. See General Committee of Ad-

justment v. Southern Pacific Co., 320 U.S. 338 (1943);

General Committee of Adjustment v. Missouri-Kansas-

Texas Railroad Co., 320 U.S. 323 (1943); Switchmen’s

Union of North America v. National Mediation Board,

320 U.S. 297 (1948).

The RLA contemplates that employees will be rep-

resented through systemwide crafts or classes of em-

ployees and that the majority of the employees in

each craft or class may select a bargaining repre-

sentative. The NMB has held on numerous occasions

that it has no authority to split a craft or class or

fragment a carrier’s labor force:

The Railway Labor Act does not authorize

the National Mediation Board to certify rep-

resentatives for small groups of employees

arbitrarily selected. Representatives may be

designated and authorized only for the whole

of a craft or class employed by a carrier.

Pennsylvania Railroad Co., 1 N.M.B. 23, 24 (1937)

(emphasis in original).

Applying this principle, the NMB has specifically

held that upon the merger of two airlines, the rep-

resentation certifications of unions of the acquired

airline, whose employees will represent only a mi-

nority of the combined employee groups after the

merger, are extinguished by operation of law at the

time of the merger. See Northwest Airlines Inc., 18

N.M.B. 399 (1986); Republic Airlines, Inc., 8 N.M.B.

49 (1980). More recently, in Trans World Airlines/

Ozark Airlines, 14 N.M.B. 218 (April 10, 1987), the

NMB reaffirmed these principles, but indicated that

representation certifications are not formally extin-

guished as a result of a merger until the NMB so

rules.

The unions have attempted to evade the NMB’s

jurisdiction to address these representation questions

in the instant merger by contending that they are

merely seeking to arbitrate contractual grievances

which do not affect representation. They claim that

the successor provisions contained in their collective

bargaining agreements required Western to extract

promises from Delta to recognize the unions as the

bargaining representatives and to honor their con-

tracts after the completion of the merger. Any ar-

bitration proceeding concerning such issues would by

its very nature require resolution of the unions’ post-

merger representation rights, thereby usurping the

NMB’s exclusive authority over such matters. Re-

gardiess of the context in which such issues arise, or

the relief sought, neither the courts nor labor arbi-

trators have jurisdiction over these issues. For the

unions to be entitled to any relief, an arbitrator would

have to determine that Western should have required

Delta to assume the unions’ contracts. The arbitrator

thereby would step into the representational area ex-

clusively reserved to the NMB.

Prior to this case, an unbroken line of appellate

decisions established that the courts must look beyond

the superficial form of a complaint to determine

whether, as here, it masks an underlying represen-

tation dispute. Regardless of the context, if repre-

sentation issues are involved, the courts are required

to diimiss the complaint for lack of jurisdiction. See,

e.g., Air Line Employees Association v. Republic Air-

lines Inc., 798 F.2d 967, 968 (7th Cir.) (per curiam),

cert. denied, __ U.S. __, 107 S. Ct. 458 (1986) (pre-

merger action for expedited arbitration of grievance);

International Brotherhood of Teamsters v. Texas In-

ternational Airlines Inc., 717 F.2d 157, 158 (5th Cir.

1983) (seeking declaration that union’s contract sur-

vived a merger); Air Line Pilots Association v. Texas

International Airlines Inc., 656 F.2d 16, 19 (2d Cir.

1981) (action to enforce contract on carrier’s subsid-

iary); International Association of Machinists v.

Northeast Airlines Inc., 5386 F.2d 975, 977 (1st Cir.),

cert. denied, 429 U.S. 961 (1976) (seeking negotiation

of employees’ post-merger rights); Flight Engineers

International Association v. Eastern Air Lines Inc.,

359 F.2d 303, 307 (2d Cir. 1966) (seeking reinstate-

ment of replaced striking employees); Brotherhood of

Railway and Steamship Clerks v. United Air Lines

Inc., 325 F.2d 576, 579 (6th Cir. 1968), cert. dis-

missed, 379 U.S. 26 (1964) (seeking declaration that

union’s contract survived a merger); Flight Engineers

International Association v. Eastern Air Lines Inc.,

311 F.2d 745, 746 (2d Cir.), cert. denied, 373 U.S.

924 (1963) (seeking injunction requiring airline to bar-

gain); Division No. 14, Order of Railroad Telegra-

phers v. Leighty, 298 F.2d 17 (4th Cir.), cert. denied,

369 U.S. 885 (1962) (seeking to enjoin agreement be-

tween railroad and parent union).

B. The Ninth Circuit’s Decision In The Instant Case Con-

flicts With Every Other Appellate Decision Regarding

The Effect Of Collective Bargaining Agreements On

Employee Representation Issues In Airline Mergers

As Justice O’Connor stated in her April 2, 1987

written opinion:

The reasoning of every other Court of

Appeals that has ruled on the issue raised )

before the Ninth Circuit casts grave doubt I

on the validity of the Ninth Circuit’s action |

in this case. The great weight of the caselaw

supports the proposition that disputes as to

the effect of collective-bargaining agreements

on representation in an airline merger situ-

ation are representation disputes within the

exclusive jurisdiction of the National Media-

tion Board. —

Slip op. at 4 (App. I-4, 5). The Courts of Appeals of

four circuits, the First, Fifth, Sixth and Seventh, have

specifically ruled that the courts have no jurisdiction

in actions to enforce union contracts in connection

with airline mergers because such actions inevitably

raise representation questions.

re Oe Peo eee sme ee

The Seventh Circuit’s recent decision in Air Line

Employees Association v. Republic Airlines Inc., 798

F.2d 967 (7th Cir.) (per curiam), cert. denied, __ U.S.

__., 107 S. Ct. 458 (1986) (“ALEA v. Republic’), is

especially instructive as its facts are indistinguishable

from those here. In anticipation of a merger with

Republic Airlines, Northwest Airlines agreed in ad-

vance to recognize two of its own unions as repre-

sentatives of the combined workforce after the merger

was to take place. Before this ‘‘transition agreement”’

became effective, one of Republic’s unions, the Air

— ~~~:

Line Employees Association (““ALEA’’), brought an

action against Republic and Northwest challenging the

transition agreement as a breach of ALEA’s labor

contract with Republic. Like the unions’ suits here,

ALEA’s suit reached the Seventh Circuit prior to the

merger. 798 F.2d at 967. Further, Count 3 of ALEA’s

complaint sought the same relief the unions seek here,

“an order compelling expedited arbitration of its

grievance challenging defendants’ contract violations

and preserving the status quo pending issuance of the

arbitrator’s decision.”’ Id. at 968.

Thus, the Seventh Circuit had before it all of the

elements of the case here at the time of the Ninth

Circuit’s decision, 1.e., a premerger contract action

against the premerger carrier while the labor agree-

ment was still in effect. Nevertheless, unlike the Ninth

Circuit, the Seventh Circuit affirmed the dismissal of

ALEA’s complaint for lack of jurisdiction:

[T]he district judge’s decision was in con-

formity with—as he put it—‘the overwhelming

and well-developed case law addressing issues

similar to those presented in the instant com-

plaint.’ ... [W]e find no reason to depart

from the consistent and well-considered anal-

ysis of our colleagues in other circuits.

... [Even though the complaint was couched

in terms of enforcing the collective bargaining

agreement, the dispute was basically a rep-

resentational dispute and therefore committed

to the sole jurisdiction of the NMB ....

Id. (footnote and citation omitted, emphasis added).!

' The Ninth Circuit incorrectly attempted to distinguish ALEA

v. Republic as ‘‘a dispute between two unions concerning post-

To the same effect is the Fifth Circuit’s decision

in International Brotherhood of Teamsters v. Texas

International Airlines Inc., 717 F.2d 157 (5th Cir.

1983). After Texas International merged with tne

larger Continental Air Lines, Texas International’s

1,800 Teamsters found themselves subsumed in an

unorganized unit of 4,000 Continental employees, and

Continental refused to recognize the Teamsters or

their premerger agreement. Although the Teamsters’

declaratory action, like the unions’ suits here, pur-

ported only to seek enforcement of the union’s con-

tract, the Fifth Circuit nevertheless held that the

action for contract enforcement hinged on the un-

derlying representation dispute. Jd. at 161. The court

found as a consequence that it had no jurisdiction to

intervene:

merger representation’”’ and’ ‘essentially ... an attempt to se-

cure a court order deciding which union should represent em-

ployees after the merger.’’ 813 F.2d at 1363 (App. A-8). The

Seventh Circuit dismissed ALEA’s claim seeking premerger ar-

bitration of its grievance, as well as its other claims for court

relief. 798 F.2d at 968. The representational nature of the dis-

pute was not affected by the form of relief sought. Moreover,

it does not matter whether a representation dispute is between

two unions, as in ALEA v. Republic, or between minority unions

and an unrepresented majority of employees, as here. A rep-

resentation dispute is triggered by the claim of even a single

union to representative status. International Brotherhood of

Teamsters v. Texas International Airlines Inc., 717 F.2d 157,

163 (5th Cir. 1983); Air Line Pilots Association v. Texas Inter-

national Airlines Inc., 656 F.2d 16, 24 (2d Cir. 1981) (“{E]ven

in the absence of a challenge by a competing union or an ap-

plication to the NMB, the court is bound to dismiss the action’’).

Summit Airlines v. Teamsters, 628 F.2d 787, 793 n.3 (2d Cir.

1980) (Representation dispute exists ‘‘even though only one union

seeks representation if some employees are indifferent or hostile

to being represented”’).

Enforcement of the contract, therefore, ines-

capably entailed the continuance of the

Union’s role as employee representative for

the minority group, in accordance with its

1980 certification. Continuation of the con-

tract in force unavoidably constitutes a de-

termination of employee representation, and

the conjunction of the two issues creates a

conflict in principles, one dictated by the ex-

press statutory provision giving the Board

sole jurisdiction over representation matters

and the other implicit from the limited scope

of the statute, that other disputes are re-

served for judicial resolution.

Id. The court continued:

Given the Mediation Board’s undeniable sole —

jurisdiction over representation matters, we

infer from the practical problems of divided

jurisdiction a congressional intention to allow

that agency alone to consider the post-merger

problems that arise from existing collective

bargaining agreements.

Id. at 164.

The same principles apply here. The Ninth Circuit’s

order compelling arbitration and staying the merger

assumes jurisdiction over a representation dispute in-

volving recognition of the unions and their labor

agreements after the merger of Delta and Western.

The Ninth Circuit decision also erroneously would al-

low an arbitrator to decide questions of representation

within the NMB’s exclusive jurisdiction. These actions

simply cannot be reconciled with the Fifth and Sev-

enth Circuit decisions or with the RLA.

Indeed, since Brotherhood of Railway and Steam-

ship Clerks v. United Air Lines Inc., 325 F.2d 576

(6th Cir. 1963), cert. dismissed, 379 U.S. 26 (1964),

was decided, the courts have recognized that placing

a representation issue in the form of a contract dis-

pute cannot oust the NMB of its exclusive jurisdiction.

In that case the premerger contract of United’s

merger partner (Capital Airlines) with the Railway

Clerks contained an express successor clause which

the union sought to enforce. The Sixth Circuit af-

firmed dismissal for lack of jurisdiction saying:

[A]lthough the suit is cast in the form of an

action under the law of contracts, it in fact

involves a representation dispute. Even

though an action is brought as one sounding

in contract the courts have no jurisdiction

‘where “validity” of the contract depends

upon the merits of a representation dispute.’

325 F.2d at 579 (citation omitted).

The First Circuit reached a similar conclusion, cit-

ing the United case. In International Association of

Machinists v. Northeast Airlines Inc., 5386 F.2d 975,

977 (1st Cir.), cert. denied, 429 U.S. 961 (1976), the

court found no jurisdiction to order the post-merger

employer to bargain with the pre-merger union, say-

ing:

At the very least, the merger created real

doubts about whether plaintiffs represent the

majority of any Delta craft or class of em-

ployees, and where there is such doubt, fed-

eral courts leave resolution of the dispute to

the National Mediation Board.

536 F.2d at 977.

Neco rnsinn theta in a en i

In addition, a number of district courts have reached

the same conclusion in recent cases. Apart from the

two cases decided below, two other district courts

recently have decided this same issue in accord with

the appellate cases cited above and have dismissed

the union actions on jurisdictional grounds. In both

cases, as here, the union’s action to compel arbitration

of a grievance was brought prior to the merger

against the premerger carrier while the union’s labor

agreement was still in effect. In Association of Flight

Attendants v. Western Air Lines, Inc., No. 87-0040

(D.D.C. Feb. 20, 1987) (App. K-1), which also arises

out of the Delta-Western merger and raises the same

issues raised here, Judge Gesell said:

Where both representational issues and ‘mi-

nor’ disputes which arguably may not involve

representational issues are involved in a sin-

gle dispute, it is not the role of a court to

attempt to define such minor issues and re-

quire they be segregated for evaluation by

the System Board. As a practical matter the

issues inevitably overlap, and any attempt to

divide jurisdiction between the System Board

and the National Mediation Board would de-

feat the purposes of the RLA. This is par-

ticularly true in merger situations where

representational issues inevitably arise and it

is ‘impossible to look only to the existence

of a collective bargaining agreement and to

isolate it from the other operational and rep-

resentational matters.’

Slip. op. at 5-6 (footnote and citation omitted) (App.

K-5).

In International Brotherhood of Teamsters, Airline

Division v. Pacific Southwest Airlines, et al., No. C-

87-0402 MHP (N.D. Cal. Mar. 20, 1987) (App. L-1),

Judge Patel said:

Since the disputed terms arise in the context

of contractual language prospectively oblig-

ing PSA to assure the inclusion of certain

terms in any subsequent merger agreement,

the provisions do not purport to directly gov-

ern the post-merger employment and repre-

sentation of any employee. Nonetheless,

courts have consistently held that such terms

effectively deny the National Mediation

Board’s sole jurisdiction over representation

matters.

Slip op. at~9 (footnote omitted) (App. L-8).

C. The Ninth Circuit Relied Upon Inapposite Authority To

Reach Its Erroneous Decision

The Ninth Circuit relied primarily on Local Lodge

No. 1266 v. Panoramic Corp., 668 F.2d 276 (7th Cir.

1981), a decision not under the RLA, but under the

National Labor Relations Act (““NLRA’’), 29 U.S.C.

§§ 151-169. 813 F.2d at 1363 (App. A-8). The Ninth

Circuit erroneously assumed that the two Acts impose

the same requirements in representation matters. The

law, however, is to the contrary.

Judge Friendly in Ruby v. American Airlines, Inc.,

323 F.2d 248 (2d-Cir. 1963), cert. denied, 376 U.S.

913 (1964), highlighted the differences between the

two statutes in representation disputes. The Second

Circuit held it had no jurisdiction under the RLA to

intervene in a representation dispute between two

unions and expressly rejected one union’s argument

oo eee emenets +=

that it should apply the allegedly contrary principles

of the NLRA:

[T]he claim that the courts should do under

the Railway Labor Act what Congress di-

rected the NLRB to do under the National

Labor Relations Act not only flies in the face

of the difference in the language and scheme

of the two statutes but ignores the diverse

problems to which they were addressed. ...

For the courts to require the Mediation Board

to transform itself into an adjudicative and

prosecutorial agency like the N.L.R.B. or to

impose themselves upon it would distort the

entire Congressional scheme.

323 F.2d at 256 (footnote and citations omitted). Ac-

cord International Association of Machinists v. North-

east Airlines Inc., 586 F.2d 975, 977 (1st Cir.), cert.

denied, 429 U.S. 961 (1976) (RLA obligations are not

the same as NLRA obligations where a merger raises

doubts about union’s majority status in the post-

merger class or craft). See also General Committee of

Adjustment v. Southern Pacific Co., 320 U.S. 338,

342-43 (1943) (Court could not, by analogy to the

NLRA, determine which union should represent em-

ployees in certain types of grievances); Aircraft Me-

chanics Fraternal Association v. United Airlines, 406

F. Supp. 492, 508 (N.D. Cal. 1976) (‘“We do not feel

compelled to expand, indeed we feel prohibited from

expanding, the limited scope of [judicial] jurisdiction

existing under the Railway Labor Act by analogy to

the National Labor Relations Act under which the

scope of [judicial] jurisdiction is much greater’’).

As all these courts have recognized, the RLA and

NLRA impose very different obligations upon the par-

ties. The NMB’s sweeping exclusive jurisdiction over

representation disputes under the RLA and the RLA’s

requirement of a single carrier-wide representative

for each craft or class have no counterparts under

the NLRA. By contrast under the NLRA, the Na-

tional Labor Relations Board (‘““NLRB’’) has primary,

but not exclusive, jurisdiction over representation is-

sues, Carpenters’ Local Union No. 1478 v. Stevens,

743 F.2d 1271, 1278-79 (9th Cir. 1984), cert. denied,

471 U.S. 1015 (1985), and the NLRB may certify an

“employer unit, craft unit, plant unit or subdivision

thereof.’’ 29 U.S.C. § 159(b).

These differences are critical. In the NLRA context

it is possible for a court to order arbitration of a

successor grievance because (1) the NLRB’s exclusive

jurisdiction would not be usurped, and (2) there are

no systemwide crafts or classes that might be frag-

mented by an arbitrator’s decision. The Ninth Cir-

cuit’s failure to recognize these differences led to its

anomalous decision which is at odds with the decisions

of the other circuits discussed above.

By ignoring the previously uniform decisions of the

other circuits, the Ninth Circuit not only asserted

jurisdiction over a matter within the exclusive domain

of the NMB, but it also improperly would allow an

arbitrator to decide representation issues. Its decision

creates a direct, irreconcilable conflict among the cir-

cuits regarding the jurisdiction of the courts, of the

NMB and of arbitrators in connection with represen-

tation disputes arising under the RLA, and this Court

must resolve that conflict.

II. THE DECISION BELOW DIRECTLY CONFLICTS |

WITH ‘HE RAILWAY LABOR ACT AND THE

STATUTORY AUTHORITY OF THE NATIONAL

MEDIATION BOARD

The RLA provides: “‘The majority of any craft or

class of employees shall have the right to determine

who shall be the representative of the craft or class

for the purposes of this chapter.”’ 45 U.S.C. § 152,

Fourth. In exercising its statutory authority to resolve

representation disputes under the RLA, the NMB has

determined that it cannot designate less than a car-

rier-wide craft or class of employees for purposes of

collective bargaining representation. As the NMB ex-

plained in New York Central Railroad Co., 1 N.M.B.

197, 209-10 (1941), single representation for a craft

or class on a carrier-wide basis was mandated by

Congress, and splitting a craft or class contravenes

the legislative directive. See also Seaboard Coast Line

Railroad Co., 6 N.M.B. 68, 64-65 (1976); Ratwlway Ex-

press Agency, 4 N.M.B. 227, 231 (1964). Yet the frag-

menting of the post-merger crafts or classes is

precisely what the Ninth Circuit’s decision would al-

low by compelling arbitration of the unions’ claims

that Western must bind Delta to recognize the unions

and their contracts for the minority groups of former

Western employees after the merger.

The NMB has consistently refused to fragment

crafts or classes in exercising its jurisdiction in airline

merger cases because of its RLA mandate to preserve

employee relations stability in the vital transportation

industries. Railway Express Agency, 4 N.M.B. 227,

231 (1964). It has also recognized that such frag-

mentation would preclude effective integration of a

combined carrier’s post-merger operations into a sin-

gle transportation system. Republic Airlines Inc., 8

N.M.B. 49, 54-55 (1980). Effective integration of a

post-merger labor force is impossible where some em-

ployees are represented by a union, while others, per-

forming the same job alongside union members, are

not. Different work rules and terms and conditions

of employment would apply to employees doing the

same jobs at the same locations, and the inefficiencies

of such an operation would be totally inconsistent

with the original purpose of the merger. See Inter-

national Brotherhood of Teamsters v. Texas Interna-

tional Airlines, Inc., 717 F.2d 157, 163 (5th Cir. 1983).

Where a smaller airline is merged into a larger one,

the NMB determines whether the two carriers become

one carrier and, therefore, whether the certifications

of the smaller carrier’s collective bargaining repre-

sentatives survive the merger. Republic Airlines, Jnc.,

8 N.M.B. 49, 56 (1980). Under the NMB’s procedures,

each craft or class can be represented, if at all, on

a systemwide basis only, and a merger of air carriers

resulting in a single transportation system has the

effect of terminating any certification of a repre-

sentative of less than a majority of the employees in

a combined craft or class. Northwest Airlines, Inc.,

13 N.M.B. 399 (1986). See also International Broth-

erhood of Teamsters v. Texas International, Inc., 717

F.2d 157, 163 (5th Cir. 1983) (recognizing NMB rules

regarding extinguishing of certification of bargaining

representative upon merger of air carriers).

In its recent decision in Trans World Airlines/Ozark

Airlines, 14 N.M.B. 218 (April 10, 1987), the NMB

ruled that the degree of integration of the operations

of two carriers into a single transportation system

determines whether the certifications of minority rep-

resentatives are terminated. Jd. at 236. The NMB also

said that in view of the increasing number of mergers

under deregulation it intends to develop and imple-

ment more definitive guidelines in the near future.

Id. at 241. Thus, the NMB has demonstrated its in-

tent, ability, and flexibility to address and resolve any

and all representation disputes arising from airline

mergers.

Furthermore, prior to the April 10, 1987 NMB de-

cision in TWA, supra, a union could invoke the § 152,

Ninth services of the NMB, which includes procedures

for employee voting with respect to a representation

dispute, but a carrier could not. Brotherhood of Razl-

way and Steamship Clerks v. Non-Contract Employ-

ees, 380 U.S. 650 (1965). Neither the ATE nor the

IBT chose to do so in the instant case, and Western

and Delta could not. However, in TWA, supra:at 241-

42, the NMB stated, for the first time, that ‘‘carriers

involved in a merger, acquisition or consolidation will

be permitted to invoke the Board’s services for de-

termination of whether any NMB certifications have

terminated.’’ Subsequently, on April 20, 1987, Delta

invoked the NMB’s services in this case. The NMB

has accepted Delta’s invocation of its services and has

asked Delta and the unions for certain information

to make its determination. Thus, the NMB has as-

serted and is exercising its exclusive jurisdiction over

these representation matters.

Instead of invoking the mandatory NMB processes,

the unions sought judicial and arbitral relief. By per-

mitting such forum shopping and endorsing the in-

tervention of the federal courts and labor arbitrators

in representation disputes, the decision of the Ninth

Circuit directly conflicts with the purposes of the RLA

and usurps the exclusive statutory authority of the

NMB to investigate and resolve such representational

disputes. The Ninth Circuit decision permitting arbi-

tration where representation issues are involved would

also lead to fragmentation of the carrier-wide craft

or class bargaining units provided for by the RLA.

The exclusivity of the NMB’s jurisdiction over rep-

resentation issues was established to assure, through

a single agency’s determinations, national uniformity

and adherence to the RLA representation principles.

In order to preserve these principles, the Ninth Cir-

cuit’s decision must be reviewed and reversed.

III. THIS CASE PRESENTS ISSUES OF NATIONAL

POLICY CRITICAL TO THE VITAL AIR AND

RAIL TRANSPORTATION INDUSTRIES

Airline mergers have become an increasingly fre-

quent event in the transportation industry, impelled

in large part by heightened competition resulting from

airline deregulation. These mergers involve thousands

of employees and hundreds of millions of dollars in

assets. They affect transportation systems used by

many millions of persons annually. Any disruption of

this vital industry, such as that threatened by the

Ninth Circuit’s decision, is of national concern. More-

over, because the decision is under the RLA, it could

lead to further incorrect decisions affecting the rail-

road industry.

The Ninth Circuit’s decision cannot be viewed as

merely an isolated, localized or technical construction

of the law. Many airlines, such as Delta and Western,

are vulnerable to suit in several circuits, including the

Ninth Circuit, because of their extensive operations.

Further, most union contracts in the airline industry

contain successor provisions, or other provisions that

might be construed to empower arbitrators to decide

representation issues, as the unions have construed

their contracts here. The combination of these factors

not only subjects merging airlines to the disruptions

caused by the Ninth Circuit’s invasion of the NMB’s

jurisdiction, but also potentially subjects them to con-

flicting requirements in different circuits with regard

to the same merger.

The instant merger illustrates how those inconsist-

encies can arise. On the same day that the Ninth

Circuit issued its decision compelling arbitration of

the unions’ grievances and enjoining the Delta-West-

ern merger, the Court of Appeals for the District of

Columbia Circuit denied a third union’s motion to

compel arbitration pending appeal, which was brought

on a legal theory identical to those used by the ATE

and IBT below. Association of Flight Attendants v.

Western Air Lines, Inc., No. 87-7040 (D.C. Cir. Mar.

31, 1987). (App. J-1)

That ruling indicates that the District of Columbia

Circuit is likely to follow the other circuits which have

concluded that the NMB has exclusive jurisdiction.

Thus, unless the Ninth Circuit is reversed, Delta is

presented with the real possibility that different re-

sults will be reached by the two courts of appeals in

the same merger.

It was precisely to avoid such conflicts, and the

resulting fragmentation of the carrier’s labor force,

that Congress vested exclusive jurisdiction over rep-

resentation disputes in the NMB. Obviously, it is in-

tolerable for the NMB’s exclusive jurisdiction over

representation disputes arising in airline and railroad

mergers to be recognized in the District of Columbia,

First, Fifth, Sixth and Seventh Circuits, but not in

the Ninth Circuit.

With so much at stake in the merger of air and

rail carriers, the interests of the parties involved and

those of the general public require that the issues

raised here be definitely resolved, and that this pre-

viously settled area of labor law be put right again.

The disruption caused by the Ninth Circuit’s ruling

in the instant merger alone is of national concern,

but, even more broadiy, the questions raised here are

certain to arise again as pending and future mergers

are consummated in the airline and railroad indus-

tries. It is therefore most important that the Court

finally resolve these questions.

CONCLUSION .

For the foregoing reasons, Petitioner respectfully

requests that a Writ of Certiorari be granted to re-

view the decision of the Ninth Circuit Court of

Appeals. Indeed, in view of the clear error of the

Ninth Circuit, Petitioner suggests that summary re-

versal of this case may be appropriate.

Respectfully submitted,

WILLIAM J. KILBERG

Counsel of Record

Scott A. KRUSE

H. JOSEPH GORE

GIBSON, DUNN & CRUTCHER

Suite 900

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

(202) 955-8500

JEFFERSON D. KirBy, III

MICHAEL H. CAMPBELL

PAUL D. JONES

FORD & HARRISON

-600 Peachtree at the Circle

Building

1275 Peachtree Street, N. E.

Atlanta, Georgia 30309

(404) 888-3800

JAMES W. CALLISON

ROBERT S. HARKEY

WALTER A. BRILL

Law Department

Delta Air Lines, Inc.

Hartsfield Atlanta Int’! Airport

Atlanta, Georgia 30320

(404) 765-2387

Counsel for Petitioners

APPENDIX

Ne is

Libr ater 103

" ~

> aie

A-l

APPENDIX A

FOR PUBLICATION

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Nos. 87-5657/5667

D.C. Nos.

CV-867-7921-JMI

CV-86-8032

FILED

APR 1 1987

IBTCWHA, LocaL UNION No. 2702,

Plaintiff-A ppellant,

WESTERN AIR LINES, INC., et al.,

Defendants-A ppellees

AIR TRANSPORT EMPLOYEES,

Plaintiff-A ppellant,

Western Air Lines, Inc.,

Defendant-A ppellee.

OPINION

Appeal from the United States District Court

For the Central District of California

James M. Ideman, District Judge, Presiding

Argued and submitted March 30, 1987

San Francisco, California

Decided March 31, 1987

Opinion Filed: April 1, 1987

A-2

Before: GOODWIN, SCHROEDER, and POOLE, Circuit

Judges.

PER CURIAM:

Plaintiffs-Appellants are the International Brotherhood

of Teamsters (IBT) and Air Transport Employees (ATE),

two unions which represent employees of Western Air

Lines. They filed these actions, which we have consolidated

on appeal, to require Western to arbitrate the unions’

claims that Western’s agreement to merge with Delta Air

Lines violates collective bargaining agreements between

Western and the unions.

The district court dismissed the actions because it viewed

the disputes as representational disputes within the exclu-

sive jurisdiction of the National Mediation Board (NMB or

Board). See 45 U.S.C. § 152. The unions, on the other

hand, characterize the disputes as concerning the proper

interpretation of terms of collective bargaining agree-

ments, including specifically bargained for provisions on

mergers, and thus arbitrable as minor disputes under the

Railway Labor Act (RLA). See 45 U.S.C. § 184. The unions

point out that the Board lacks authority to enforce con-

tracts, see Chicago & N.W. Ry. v. United Transportation

Union, 402 U.S. 570 (1971).

We granted both unions’ requests for injunctive relief

pending appeal and ordered arbitration to proceed on an

expedited basis. All parties have requested an expedited

hearing of the merits of the appeal, and we have granted

such expedited treatment so that the issue of the arbitra-

bility of the dispute can be resolved before the scheduled

merger of the two airlines on April 1, 1987. We hold that

the disputes are arbitrable (minor) disputes under the RLA

because they center on the applicability and interpretation

of collective bargaining agreements. The arbitrations can-

not be completed prior to the date of the scheduled merger

of the two airlines, however, and if the merger is con-

summated as planned there will be no entity with whom

on -

a ae

A-3

the unions may arbitrate. In order to preserve the status

quo, see Brotherhood of Locomotive Engineers v. Missouri- ~

Kansas-Texas R.R., 363 U.S. 528, 531 (1960), we order

Western Air Lines to take appropriate steps to see that

a valid award of the arbitrator may be enforced.

BACKGROUND

ATE is the certified representative of Western’s clerical,

office, fleet, and passenger service employees. IBT rep-

resents Western’s mechanics, stock clerks, and flight in-

structors.

Western’s collective bargaining agreement with ATE

states that the agreement shall be binding on any succes-

sor of Western and that the successor shall continue to

apply the terms of the agreement until the agreement is

changed in accordance with the RLA. Western’s agree-

ment with IBT similarly provides that the collective bar-

gaining agreements are binding on Western’s successors

and that, in case of consolidation or merger, Western and

IBT shall meet to negotiate provisions for protection of

Western employees.

On September 1, 1984, IBT and Western signed a letter

of agreement stating that if Western were the object of

an unfriendly takeover, it would require the acquiring air-

line to assume its collective bargaining agreement obli-

gations to IBT. The letter further states that Western will

be liable to IBT and Western’s employees for damages if

Western fails to obtain such agreement from the acquiring

airline.

A second letter of agreement between IBT and Western,

dated September 14, 1984, states that Western will not

agree to a merger unless the acquiring airline agrees that

Western’s maintenance facilities will be operated sepa-

rately from those of the acquiring airline, unless IBT agrees

to integration of Western’s mechanics with those of the

purchasing company. The letter further stipulates that after

A-4

a merger all work performed by Western employees rep-

resented by IBT would continue to be assigned to those

employees, and that work would continue to be recognized

as within IBT’s jurisdicticn and covered by the IBT-West-

ern collective bargaining agreements. Similar understand-

ings with respect to merger were negotiated with ATE.

These merger provisions between IBT and ATE and

Western were agreed to as part of extensive negotiations

which included wage concessions of ten percent for IBT-

represented employees and ten-to twenty percent by ATE-

represented employees.

On September 9, 1986, Delta, its subsidiary DL Acqui-

sition Corp., and Western entered into an agreement to

merge Western into Delta. The United States Department

of Transportation approved the merger and Delta acquired

Western’s shares on December 16, 1986. Delta’s acquisi-

tion of Western stock constituted the first phase of the

merger. The second phase is scheduled to occur on April

1, 1987, when Delta will combine operations of the two

airlines. Western will cease to exist as a separate corpo-

rate entity on that date. The merger agreement between

Western and Delta does not provide that Delta will rec-

ognize the unions or be bound by the Western-ATE/IBT

collective bargaining agreements after April 1. It appar-

ently makes no mention of Western’s agreements with the

unions regarding merger. Delta employees within the crafts

covered by these collective bargaining agreements are not

represented by any union.

Both unions filed grievances regarding Western’s al-

leged failure to comply with the collective bargaining

agreements. Both unions alleged that the collective bar-

gaining agreements were breached by Western’s agree-

ment to merge. Western responded that the clauses and

letters of agreement were inapplicable to the merger. Both

unions then requested arbitration of whether there had

been a breach by the merger agreement. Western refused

A-5

to submit to arbitration of these issues on the ground that

they might result in the arbitration deciding who would -

properly represent Delta employees after the merger.

Western argued that because these issues involve the

unions’ representation status, they are not arbitrable, but

instead are subject to the exclusive jurisdiction of the NMB.

Both unions then filed actions in the district court for

injunctions to compel arbitration. On February 17, 1987,

the district court considered both cases simultaneously and

dismissed both actions for lack of jurisdiction. In both

cases, the court in two-page orders agreed with Western

that the disputes involved representation issues over which

the NMB has exclusive jurisdiction. Both unions timely

appealed.

THESE APPEALS

The merits of these appeals concern essentially juris-

dictional questions. They are whether the provisions of the

_collective bargaining agreements or the letters of agree-

ment, are enforceable through arbitration, or whether they

raise questions of representation that can be decided only

by the NMB.

The RLA, which governs labor relations in the railroad

and airline industries, defines three classes of labor dis-

putes. International Brotherhood of Teamsters, Chauffeurs,

Warehousemen & Helpers of America v. Texas Interna-

tional Airlines, Inc., 717 F.2d 157, 158 (5th Cir. 1983)

(representation, minor, and major). None of the parties

contend that this is a major dispute, so we are concerned

only with the distinction between representation and minor

disputes.

Representation disputes involve determining the collec-

tive bargaining representative of the employees and the

proper bargaining unit, craft, or class of employees to be

represented. Jd. at 158-59. A dispute as to the proper

representative of airline employees is committed to the

A-6

exclusive jurisdiction of the NMB. Id; 45 U.S.C. § 152

(Ninth). Thus, federal courts lack jurisdiction over actions

raising such disputes.

A minor dispute involves a disagreement over the ap-

plication or interpretation of an existing collective bar-

gaining agreement. International Association of Machinists

and Aerospace Workers v. Aloha Airlines, Inc., 776 F.2d

812, 815 (9th Cir. 1985). Any controversy over the mean-

ing of a collective bargaining agreement in the context of.

a particular fact situation is a minor dispute. See Inter-

national Association of Machinists and Aerospace Workers

v. Republic Airlines, 761 F.2d 1386, 1390 (9th Cir. 1984),

Kaschak v. Consolidated Rail Corp., 707 F.2d 902, 905

(6th Cir. 1983). We have said that where the position of

one party is expressly and arguably predicated on the

terms of the agreement, ‘‘the question of whether the

position is well taken involves a minor dispute.” Switch-

men’s Union of North America v. Southern Pacific Co.,

398 F.2d 443, 447 (9th Cir. 1968). Aloha Airlines, 776

F.2d at 816; O’Donnell v. Wien Air Alaska, Inc., 551 F.2d

1141, 1146-47 (9th Cir. 1977). The exclusive means of re-

solving such disputes is through RLA grievance and ar-

bitration procedures which can be compelled by court order.

See Republic Airlines, 761 F.2d at 1389-90. The arbitrator,

however, has primary and exclusive jurisdiction to inter-

pret the provisions of a collective bargaining agreement

and fashion the appropriate award in case of breach. Jd.

at 1390.

It is important here to view these cases in the context

in which they now exist. The unions have been certified

by NMB as the bargaining repres -ntatives of Western em-

ployees. At the time these cases were filed, Western ex-

isted as an independent operational entity. However,

Western’s separate corporate operations at the time of this

writing are scheduled to cease momentarily.

ENE DRS BIO OD

A-7

The unions are not seeking either by this action or by

arbitration to obtain recognition by Western of their status

as the collective bargaining representatives of Western’s

employees; the unions already have such recognition. Sim-

ilarly, the unions are not seeking a determination that they

are the collective bargaining representative of Delta em-

ployees. This action seeks arbitration with Western, not

Delta. The arbitration is not likely to make a determination

that any union or unions will become the representative

of Delta employees, given the scope of jurisdiction of the

Systems Adjustment Board. See 45 U.S.C. § 184. Instead,

the unions seek a determination that Western breached

its agreement by agreeing to a merger with an airline that

did not agree to voluntarily recognize the unions. Thus,

strictly speaking, the actions by these unions are not for

resolution of “representation” disputes, but are merely

claims that Western has breached its contract.

Western contends, and the district court agreed, that

other circuits have held that disputes similar to those raised

by IBT and ATE involved representation and thus were

not arbitrable. These cases, however, generally involve an

attempt by a union after a merger has taken effect to

force a successor employer to be bound by a collective

bargaining agreement entered into by the union and the

predecessor employer. Texas International Airlines, 717

F.2d at 158, International Association of Machinists and

Aerospace Workers v. Northeast Airlines, Inc., 536 F.2d

975, 976 (1st Cir.), cert. denied, 429 U.S. 961 (1976). See

also Air Line Pilots Association, International v. Texas

International Airlines, Inc., 656 F.2d 16, 17-18 (2d Cir.

1981).

For this reason appellees place particular reliance upon

Air Line Employees Association, International v. Republic

Airlines, Inc., 798 F.2d 967 (7th Cir.) (per curiam), cert.

denied, 107 S. Ct. 458 (1986), a case filed before a merger.

Although the multi-count complaint contained a count al-

leging breach of the collective bargaining agreement and

A-8

seeking arbitration, the case was clearly a dispute between

two unions concerning post-merger representation. The re-

lief sought included a court ordered election to determine

majority status. The court properly treated the case es-

sentially as an attempt to secure a court order deciding

which union should represent employees after the merger,

and dismissed for lack of jurisdiction over representation

matters, relying upon the Fifth Circuit’s decision in Texas

International Airlines.

A more instructive decision from the Seventh Circuit is

Local Lodge No. 1266 v. Panoramic Corp., 668 F.2d 276

(7th Cir. 1981), in which arbitration of a successor-em-

ployer clause was sought. The court affirmed an order

enjoining a sale of corporate assets pending arbitration,

stating: -

We conclude that the Union’s claim that the

proposed sale of the [company] violates the ‘‘suc-

cessors”’ clause of the collective bargaining agree-

ment raises a sufficiently ‘‘genuine” dispute to

support a status quo injunction. We decline Pan-

oramic’s invitation to parse the language of the

“‘suecessors’’ clause, which Panoramic contends

cannot support the Union’s interpretation. Con-

tract interpretation is the function of the arbi-

trator not the courts.

Id. at 285. Although Panoramic arose under the National

Labor Relations Act rather than the RLA, the role of the

arbitrator in interpreting the contract under the RLA is

exclusive, and thus very broad. Aloha Airlines, 776 F.2d

at 815. See also International Association of Machinists

and Aerospace Workers v. Northeast Airlines, Inc., 473

F.2d 549, 551 (1st Cir.), cert. dented, 409 U.S. 845 (1972).

In Northeast Airlines, the collective bargaining agreement

provided that it would be binding on successors of North-

east, and that if a merger were imminent, representatives

of Northeast and the union would meet to negotiate pro-

A-9

tective provisions for Northeast empioyees. Although the

court refused to enjoin the merger due to its finding under

a balance of hardships analysis that Northeast would go

out of business if the merger failed, id. at 553-59, it stated

that whether Northeast was required by the successor-

employer clause to negotiate with the union regarding post-

merger employee rights was a minor dispute and thus

arbitrable. Jd. at 554-55.

We have recognized that injunctive relief is appropriate

to compel parties to fulfill their obligations under the RLA.

Federal Express Corp. v. Teamster Union, 617 F.2d 524,

526 (9th Cir. 1980). Arbitration is such an obligation and

we therefore hold that the district court erred in deciding

that it was without jurisdiction to enter an order to ar-

bitrate.

We face, however, the practical problem that at this

late stage, with the merger imminent and one party to

the arbitration about to cease its independent existence,

the district court will lose jurisdiction to enter an effective

arbitration order if the merger takes place as presently

planned. The unions have therefore asked that we enjoin

the merger in its entirety pending arbitration, a step re-

sisted by Western because of the disruption to its other

contractual obligations. Such disruption may be avoided,

however, if appropriate steps are taken to see that the

successor corporation agrees to honor the contractual ob-

ligations, if any, of Western to the unions.

We express no opinion as to the proper interpretation

of the contract or the appropriate remedies in the event

the arbitrator determines that there has been a breach.

We expressly decline to decide whether the arbitrator can

validly order representation by any union. It is the function

of the arbitrator, not the courts, to decide the meaning

of the contract and to consider appropriate remedies in

the first instance. The courts can and should preserve the

status quo so that such arbitration may proceed under the

A-10

RLA. See Brotherhood of Locomotive Engineers, 363 U.S.

at 531.

We have therefore directed the following:

1. The judgments of the district court dismissing the

unions’ actions are reversed and the causes are remanded

with instructions to enter orders compelling arbitration.

2. Western’s motion for reconsideration of our order

compelling arbitration pending appeal is denied.

3. The contemplated merger of Western Air Lines and

Delta Air Lines is enjoined pending completion of arbi-

tration proceedings or until Western and Delta file with

the clerk of this court a stipulation that the result of the

arbitration, subject to appropriate judicial review and all

valid defenses, will bind the successor corporation. Upon

filing o* such stipulation and approval by this court, the

injunction of the merger shall terminate.

4. Subject to the provisions of the foregoing paragraph,

the district court shall retain jurisdiction to ensure that

the arbitration proceeds without undue delay.

5. Because the injunction is ordered to preserve the

jurisdiction of the district court and the Systems Adjust-

ment Board, under the Railway Labor Act, no bond will

be required.

6. Each party is to bear its own costs.

It is so ordered.

Dsinitidinnihie stuaa ie,

B-1

APPENDIX B

‘UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Nos. 87-5657/5667

D.C. Nos.

CV-86-7921-JMI

CV-86-8032

FILED

MAR 31 1987

IBTCWHA, LocaL UNION No. 2702,

Plaintiff-A ppellant,

WESTERN AIR LINES, INC., et al.,

Defendants-A ppellees

AtR TRANSPORT EMPLOYEES,

Plaintiff-A ppellant,

Vi -

Western Air Lines, Inc.,

Defendant-A ppellee.

ORDER

Before: GOODWIN, SCHROEDER, and POOLE, Circuit

Judges

1. The judgments of the district court dismissing the

unions’ actions are reversed and the causes are remanded

with instructions to enter orders compelling arbitration.

2. Western’s motion for reconsideration of our order

compelling arbitration pending appeal is denied.

B-2

3. The contemplated merger of Western Air Lines and

Delta Air Lines is enjoined pending completion of arbi-

tration proceedings or until Western and Delta file with

the Clerk of this Court a stipulation that the result of the

arbitration, subject to appropriate judicial review and all

valid defenses, will bind the successor corporation. Upon

filing of such stipulation and approval by this court, the

injunction of the merger shall terminate.

4. Subject to the provisions of the foregoing paragraph,

the district court shall retain jurisdiction to ensure that

the arbitration proceeds without undue delay.

5. Because the injunction is ordered to preserve the

jurisdiction of the district court and the Systems Adjust-

ment Board under the Railway Labor Act, no bond will

be required.

6. Each party is to bear its own costs.

It is so ordered. A written opinion will be filed as soon

as practicable.

C-1

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 87-5657

DC# CV-86-7921-JMI

Central California

IBTCWHA, LocaL UNION No. 2702,

Plaintiff-A ppellant,

vs.

WESTERN AIR LINES, INC., et al.,

Defendants-A ppellees.

ORDER

Before: SCHROEDER and POOLE, Circuit Judges

Plaintiff's emergency motion for expedited consideratic”

of the appeal is construed as an emergency motion for a:

injunction pending appeal compelling arbitration so con-

strued, the motion is granted.

The parties shall negotiate at the earliest possible time

to select an arbitrator to decide the merits of the parties’

disagreement over the interpretation of their collective

bargaining agreement.

If the parties cannot agree within five days of the entry

of this order upon an arbitrator, either party may request

a list of available arbitrators from the National Mediation

Board. The parties shall alternatively strike names from

the list. The last remaining name shall be chosen to ar-

bitrate the disputes. If that arbitrator is not available

within 10 days of the date on which request is made to

the National Mediation Board, the arbitrator on the list

whose name was last struck shall be selected.

C-2

The parties shall proceed to arbitrate this matter pend-

ing this court’s decision of the appeal.

Peete ox.

a ee ee

D-1

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 87-5667

DC# CV-86-8032

Central California

AIR TRANSPORT EMPLOYEES,

Plainfiff-A ppellant,

VS.

WESTERN AIR LINES, INC.,

Defendant-A ppellee.

ORDER

Before: SCHROEDER and POOLE, Circuit Judges

Appellant’s emergency motion for an injunction pending

appeal is granted. See Lopez v. Heckler, 713 F.2d 1432,

1435 (9th Cir.), rev'd in part on other grounds, 463 U.S.

1328, 464 U.S. 879 (1983).

The parties shall negotiate at the earliest possible time

to select an arbitrator to decide the merits of the parties’

disagreement over the interpretation of their collective

bargaining agreements.

If the parties cannot agree within five days of the entry

of this order upon an arbitrator, either party may request

a list of available arbitrators from the National Mediation

Board. The parties shall alternately strike names from the

list. The last remaining name shall be chosen to arbitrate

the disputes. If that arbitrator is not available within 10

days of the date on which request is made to the National

D-2

Mediation Board, the arbitrator on the list whose name

was last struck shall be selected.

The parties shall proceed to arbitrate this matter pend-

ing this court’s decision of the appeal.

ee ee ee

E-1

APPENDIX E

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No. CV 86-7921 JMI (Px)

FILED

FEB 13 1987

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,

WAREHOUSEMEN AND HELPERS OF AMERICA, et al.,

Plaintiffs, -

Vv.

WESTERN AIR LINES, INC., et al.,

Defendants.

ORDER DENYING PLAINTIFFS’ MOTION FOR

PARTIAL SUMMARY JUDGMENT; ORDER

GRANTING DEFENDANTS’ MOTION TO DISMISS

FOR LACK OF JURISDICTION

This matter came regularly before the Honorable James

M. Ideman, United States District Judge, for considera-

tion. After full consideration of the moving and responding

papers, and the file in the case, IT IS HEREBY OR-

DERED as follows:

1. Plaintiffs’ Motion for Partial Summary Judgment is

DENIED.

2. Defendants’ Motion to Dismiss for lack of jurisdiction

is GRANTED without prejudice.

It is the duty of the National Mediation Board (here-

inafter ‘“‘NMB’’) to investigate all disputes regarding em-

ployee representatives. 29 C.F.R. § 1203.2. In the present

case, the dispute is between the carrier (Western) and the

union (the employee representative). The Supreme Court

E-2

has held that the jurisdiction of the NMB over represen-

tation disputes under the Act is exclusive and the decisions

of the NMB are representation matters and not subject

to judicial review. Switchman’s Union v. National Media-

tion Board, 320 U.S. 297, 64 S.Ct. 95, 98-100 (1943); Gen-

eral Committee v. Missouri-Kansas-Texas Railroad, 320

U.S. 323 (1948). Federal Courts may not intervene in a

representation dispute but must disclaim jurisdiction and

leave to the NMB, the protection of the conditions nec-

essary to insure employee free choice. Texador v. Suressa,

590 F.2d 357 (1st Cir. 1978); Aircraft Fraternal Associ-

ation v. United Airlines, Inc., 406 F. Supp. 492 (N.D. Cal.

1976).

In the following cases, the Court dismissed the action

since a representation issue was raised which was within

the exclusive jurisdiction of the NMB. In Airline Employ-

ees Associations v. Republic Airlines, Inc., 798 F.2d 967,

968 (7th Cir. 1986), cert. denied, 55 U.S.L.W. 3358 (No-

vember 18, 1986), the Court held that the union’s action

for expedited arbitration of a grievance and an injunction

pending arbitration in a merger case raised representation

issues. Similarly, in Teamsters v. Texas International Air-

lines, Inc., 717 F.2d 157, 158 (5th Cir. 1983), the Court

held that an action by a union seeking a declaration that

its contract survived a merger raised an issue of repre-

sentation.

Similarly, in the present case the union’s action for an

injunction and arbitration of a grievance in a merger, raises

a representation issue. Therefore, the Court declines ju-

risdiction since representation disputes are within the ex-

clusive jurisdiction of the NMB and are not subject to

judicial review.

IT IS SO ORDERED.

DATED: 13 FEB 87

E-3

Whe

JAMES M. IDEMAN

United States District Judge

F-1

APPENDIX F

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No. CV 86-8032 JMI (Bx)

FILED

FEB 138 1987

AIR TRANSPORT EMPLOYEES,

Plaintiffs,

v. .

WESTERN AIR LINES, INC.,

Defendants.

ORDER DISMISSING THE ACTION FOR LACK OF

JURISDICTION

This matter came regularly before the Honorable James

M. Ideman, United States District Judge, for considera-

tion. After full consideration of the file in the case, IT IS

HEREBY ORDERED as follows:

1. The Court sua sponte dismisses the instant action for

lack of subject matter jurisdiction, without prejudice. The

Court finds that the present action raises a representation

issue, which is within the exclusive jurisdiction of National

Mediation Board (hereinafter ‘‘“NMB’’).

2. On January 21, 1987, the Court issued an Order to

Show Cause Re Dismissal, whereby the parties were in-

structed to respond to the Court’s Order on or before

January 28, 1987. However, the parties have failed to show

cause as_to why the action should not be dismissed. Ac-

cordingly, the Court declines jurisdiction since represen-

tation disputes are within the exclusive jurisdiction of the

NMB and are not subject to judicial review.

IT IS SO ORDERED.

F-2

DATED: 13 Feb 87

JAMES M. IDEMAN

United States District Judge

BEE LEE te CN A mi) ICE a NPS id a OS Malta Si jard aes

G-1

APPENDIX G

SUPREME COURT OF THE UNITED STATES

No. A-716

WESTERN AIRLINES, INC., et al.,

Applicants,

IBTCWHA, LOCAL UNION No. 2702, et al.

ORDER

UPON CONSIDERATION of the application of counsel

for the applicants,

IT IS ORDERED that the injunction issued by the

United States Court of Appeals for the Ninth Circuit on

March 31, 1987, case Nos. 87-5657 and 87-5667, be, and

the same is hereby, stayed pending the timely filing and

disposition of a petition for a writ of certiorari. Should

the petition for a writ of certiorari be denied, this stay

terminates automatically. In the event the petition for a

writ of certiorari is granted, this stay shall continue pend-

ing the sending down of the judgment of this Court.

/s/ SANDRA Day O‘CONNOR

Associate Justice of the Supreme Court

of the United States

Dated this lst

day of April, 1987

H-1

APPENDIX H

SUPREME COURT OF THE UNITED STATES

No. A-716

WESTERN AIRLINES, INC., et al.,

: Applicants,

} INTERNATIONAL BROTHERHOOD OF TEAMSTERS

' AND AIR TRANSPORT EMPLOYEES

AMENDED ORDER

UPON CONSIDERATION of the application of counsel

for the applicants,

IT IS ORDERED that the injunction and order com-

pelling arbitration before the Systems Boards issued by

the United States Court of Appeals for the Ninth Circuit

on March 31, 1987, case Nos. 87-5657 and 87-5667, be,

and the same are hereby, stayed pending the timely filing

and disposition of a petition for a writ of certiorari. Should

the petition for a writ of certiorari be denied, this stay

terminates automatically. In the event the petition for a

writ of certiorari is granted, this stay shall continue pend-

ing the sending down of the judgment of this Court.

/s/ SANDRA D. O‘CONNOR

Associate Justice of the Supreme Court

of the United States

Dated this 2nd

day of April, 1987.

See

ee ae oe Tee ae

I-1

APPENDIX I

SUPREME COURT OF THE UNITED STATES

No. A-716

WESTERN AIRLINES, INC. AND DELTA AIR LINES, INC. v.

INTERNATIONAL BROTHERHOOD OF TEAMSTERS AND AIR

TRANSPORT EMPLOYEES

ON APPLICATION FOR STAY

[April 2, 1987]

JUSTICE O’CONNOR, Circuit Juice.

Applicants request that I issue a stay pending the filing

and disposition of a petition for certiorari to review the

judgment of the United States Court of Appeals for the

Ninth Circuit.

The underlying dispute in this case involves the division

of responsibility for regulation of collective bargaining be-

tween airlines and their employees under the Railway La-

bor Act, 45 U.S.C. §151 et seg. The Act defines three

classes of labor disputes and establishes a different dispute

resolution procedure for each. ‘‘Minor’”’ disputes involve

the application or interpretation of an existing collective-

bargaining agreement. Minor disputes are subject to ar-

bitration by a System Board of Adjustment. 45 U.S.C.

§184. While courts lack authority to interpret the terms

of a collective-bargaining agreement, a court may compel

arbitration of a minor dispute before the authorized Sys-

tem Board.

‘“‘Major”’ disputes involve the formation of collective-bar-

gaining agreements, and the resolution of such disputes is

governed by §6 of the Act, 45 U.S.C. §§156, 181.

1-2

“Representation” disputes involve defining the bargain-

ing unit and determining the employee representative for

collective bargaining. Under §2, Ninth of the Act, the Na-

tional Mediation Board has exclusive jurisdiction over rep-

resentation disputes. 45 U.S.C. §152, 181.

Applicants, Western Airlines and Delta Air Lines, en-

tered into an agreement and plan of merger on September

9, 1986. The merger agreement was approved by the

United States Department of Transportation on December

11, 1986. On December 16, 1986, shareholder approval of

the merger was conferred and Western Airlines became

a wholly-owned subsidiary of Delta. On the morning of

April 1, 1987, the merger of Western Airlines with Delta

was scheduled to be completed. See infra at ——.

Respondents represented various crafts or classes of em-

ployees of Western Airlines. The Air Transport Employees

(ATE) was designated by the National Mediation Board as

the bargaining representative for a unit of Western em-

ployees consisting of clerical, office, fleet and passenger

service employees. The International Brotherhood of

Teamsters Local 2707 was the certified representative of

three crafts or classes employed by Western: mechanics

and related employees, stock clerks, and flight instructors.

Each union’s collective-bargaining agreement has a pro-

vision stating that the agreement shall be binding upon

successors of the company.

Delta has substantially more employees than Western in

the crafts or classes represented by the unions, and these

Delta employees had no bargaining representative.

Respondents filed grievances alleging that Western vio-

lated the successorship provisions of the two collective-

bargaining agreements by failing to secure Delta’s agree-

ment to be bound by the collective-bargaining agreements

between Western and respondent unions. Western refused

to arbitrate the grievances, asserting that they necessarily

1-3

involved representation issues and therefore were within

the exclusive jurisdiction of the National Mediation Board.

The unions filed separate complaints in the District Court

for the Central District of California, each requesting the

district court to treat the successor clause dispute as a

minor dispute, and compel arbitration of the dispute by

the System Adjustment Board. Both complaints were dis-

missed for lack of subject matter jurisdiction.

On March 17, 1987, the Court of Appeals for the Ninth

Circuit entered an interim order directing arbitration of

the grievances to proceed before the unions’ respective

System Adjustment Boards pending appeal.

At approximately 8:00 p.m. Eastern Time March 31—

little more than 12 hours before the merger was scheduled

to take place—the Court of Appeals for the Ninth Circuit

issued the following order:

“1. The judgments of the district court dismissing

the unions’ actions are reversed and the causes are

remanded with instructions to enter orders compelling

arbitration.

“9 Western’s motion for reconsideration of our or-

der compelling arbitration pending appeal is denied.

“3. The contemplated merger of Western Air Lines

and Delta Air Lines is enjoined pending completion

of arbitration proceedings or until] Western and Delta

file with the Clerk of this Court a stipulation that the

result of the arbitration, subject to appropriate judicial

review and all valid defenses, will bind the successor

corporation. Upon filing of such stipulation and ap-

proval by the court, the injunction of the merger shall

terminate.

It is so ordered. A written opinion will be filed as

soon as practicable.”’

1-4

The timing and substance of the Court of Appeal’s order

under the exigencies of this case made compliance with

Rule 44.4 of this Court, requiring that a motion for a stay

first be filed with the court below, both virtually impossible

and legally futile. I conclude that this situation presents

one of those rare extraordinary circumstances in which

request for a stay before the Court of Appeals is not

required under the Rule.

I also conclude that the judgment of the Court of

Appeais, reversing the district court decisions, requiring

the entry of orders compelling arbitration, and enjoining

the merger, is final within the meaning of 28 U.S.C.

§2101(f). The Court of Appeal’s provision for lifting the

injunction upon certain stipulations of applicants does not

divest the judgment of finality when, as in this case, the

required stipulations, to have any significance, must bind

applicants to a concession of their position on the only

question before the Court of Appeals: whether the suc-

cessor clause dispute is within the jurisdiction of the Sys-

tem Adjustment Board or the National Mediation Board.

Moreover, regardless of the finality of the judgment

below, ‘‘a Circuit Justice has jurisdiction to vacate a stay

where it appears that the rights of the parties to a case

pending in the court of appeals, which case could and very

likely would be reviewed here upon final disposition in the

court of appeals, may be seriously and irreparably injured

by the stay, and the Circuit Justice is of the opinion that

the court of appeals is demonstrably wrong in its appli-

cation of accepted standards in deciding to issue the stay.”

Coleman v. Paccar, Inc., 424 U.S. 1301 (1976) (REHNQUIST,

J., in chambers).

The reasoning of every other Court of Appeals that has

ruled on the issue raised before the Ninth Circuit casts

grave doubt «n the validity of the Ninth Circuit’s action

in this case. The great weight of the caselaw supports the

proposition that disputes as to the effect of collective-bar-

1-5

gaining agreements on representation in an airline merger

situation are representation disputes within the exclusive

jurisdiction of the National Mediation Board. In Interna-

tional Brotherhood of Teamsters v. Texas International

Airlines, Inc., 717 F. 2d 157 (CA5 19838), the Court of

Appeals for the Fifth Circuit held that ‘(t]he [Railway

Labor] Act commits disputes involving a determination of

who is to represent airline employees in collective bar-

gaining to the exclusive jurisdiction of the National Me-

diation Board.” The Fifth Circuit stated, ‘“‘A court may

not entertain an action involving such a dispute even if it

arises in the context of otherwise justiciable claims. More-

over, a court may not grant injunctive relief maintaining

the status quo if the underlying dispute is representational

in nature, because to do so would necessarily have the

effect, at least during the period of the injunction, of de-

ciding the representation issue.”’ Jd., at 161. ‘“‘Given the

Mediation Board’s undeniable sole jurisdiction over rep-

resentation matters,’ and the practical problems of divided

jurisdiction among the other dispute-resolution fora, the

Fifth Circuit inferred ‘‘a congressional intention to allow

that agency alone to consider the post-merger problems

that arise from existing collective bargaining agreements.”’

Id., at 164. The Court of Appeals for the Seventh Circuit

treated the question of National Mediation Board jurisdic-

tion over alleged collective bargaining violations implicat-

ing post-merger representation as one settled by ‘‘the

overwhelming and well-developed case law,’’ and found ‘‘no

reason to depart from the consistent and well-considered

analysis of our colleagues in other circuits.”’ Air Line Em-

ployees v. Republic Airlines, Inc., 798 F.2d 967, 968, cert.

denied, ___U.S. (1986). See also Air Line Pilots Ass’n

Int'l v. Texas Int'l Airlines, 656 F. 2d 16 (CA2 1981);

International Ass’n of Machinists v. Northeast Airlines,

Inc., 536 F. 2d 975, 977 (CA1), cert. denied, 429 U.S. 961

(1976); Brotherhood of Ry. & S.S. Clerks v. United Air

Lines, Inc., 325 F. 2d 576 (CA6 1963), cert. dismissed,

1-6

379 U.S. 26 (1964). It was upon this overwhelming body

of caselaw that the District Court for the District of Co-

lumbia relied when it considered the complaint of the As-

sociation of Flight Attendants (AFA), also arising from

the Western-Delta merger. AFA’s complaint, seeking an

order compelling Western to submit to arbitration by the

System Board of Adjustment and enjoining the merger

pending completion of proceedings before the System

Board, was dismissed. Association of Flight Attendants,

AFL-CIO v. Western Airlines, Inc., No. 87-0040 (D DC

February 2(, 1987). On March 31, 1987 the Court of

Appeals for the District of Columbia Circuit denied AFA’s

motions to compel arbitration pending appeal, and its mo-

tion for expedited appeal and decision before April 1. As-

sociation of Flight Attendants, AFL-CIO v. Western

Airlines, Inc., No. 87-7040. The Ninth Circuit’s divergence

from this line of Court of Appeals decisions leads me to

find it very likely that at least four Justices would vote

to grant certiorari, and that the applicant is likely to pre-

vail on the merits.

To appreciate the balance of the equities created by the

Ninth Circuit’s order, one must focus on the stipulation

clause of that order. What was to be gained or lost by

the applicants and respondents in this case was not the

merger of Western and Delta Airlines alone but the sub-

stance of the stipulation on which that merger was con-

ditioned by the Ninth Circuit.

The stipulation which the Ninth Circuit required from

Western and Delta Airlines is subject to two interpreta-

tions. The first is a requirement that Delta and Western

agree that if, after full judicial review of the jurisdictional

as well as other issues raised, it is determined that the

claims presented by the respondents fall under the juris-

diction of the System Adjustment Board, the successor

corporation will be bound by the result of the completed

arbitration process. Under this interpretation of the stip-

ulation, the successor corporation was required to do no

1-7

more than adhere to the obligations placed upon it by law,

as those obligations are determined in the litigation. Those

legal obligations, of course, would exist independent of any

stipulation. If the stipulation would leave the applicants

free to assert any of their arguments against the juris-

diction of the System Adjustment Boards, the applicants

would have remained in the same position after the stip-

ulation as they were before, and the stipulation would have

served no purpose.

The other interpretation of the clause is that, in order

to avoid an eleventh hour injunction of the merger, Delta

and Western were required to stipulate as to the cor-

rectness of respondents’ argument that this dispute did in

fact fall under the jurisdiction of the Systems Adjustment

Board. As to the balance of equities on this interpretation

of the Ninth Circuit’s order, they clearly weigh in favor

of the applicants. The potential harm that would be suf-

fered by applicants as a result of the Court of Appeals’

injunction of their merger is seriously aggravated by the

fact that the order issued on the very eve of the merger’s

consummation. For several months, applicants have been

planning to combine their large-scale, complex, inter-re-

lated and heavily regulated operations effective April 1,

1987. That planning included the transfer, modification and

cancellation of hundreds of Western’s contracts for sup-

plies and services and equipment leases. The epproval of

the Federal Aviation Administration of changes in West-

ern’s operating certificates, specifications and training pro-

grams have been sought and received. Maintenance

schedules, flight schedules and staffing schedules have been

modified .n order to effect a smooth transition to a merged

operation on April 1. Large numbers of Western man-

agement personnel, without whom it cannot operate as an

independent entity, are to be severed effective April 1;

many have presumably arranged for new employment.

Delta has negotiated for transfer of Western’s Mexican

and Canadian routes with the respective governments of

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those countries. It is doubtful that these arrangements can

be undone if the merger does not take place as anticipated.

Because of the operational adjustments that are already

in place, the FAA has expressed doubt whether Western

will be permitted to continue operations should the merger

not take place, potentially stranding thousands of travel-

ers. Employees, expecting to be transferred to new lo-

cations after April 1, have sold old homes and bought or

leased new ones. Changes in pay, working conditions, and

conditions of employment all have been planned for and

relied upon in anticipation of the merger. Millions of dol-

lars of advertising have been targeted toward the April

1, 1987 merger date. And the list of consequences goes

on. See Emergency Application for Stay and Vacation of

Injunction, Affidavit of Hollis Harris and Exhibit 1 thereof;

Affidavit of Robert Oppenlander; Affidavit of Russell H.

Heil; Affidavit of Whitley Hawkins; Affidavit of C. Julian

May; Affidavit of Jason R. Archambeau. The cost of en-

joining this huge undertaking only hours before its long

awaited consummation is simply staggering in its magni-

tude, in the number of lives touched and dollars lost. To

assume that enjoining of the merger would do no more

than preserve the “status quo,” in the face of this up-

heaval, would be to blink at reality. Under the second

interpretation of the stipulation clause—the only interpre-

tation under which the required stipulations would have

had meaning—applicants could prevent these losses only

by conceding their argument, supported by the great

weight of authority, that their dispute with respondents

fell under the jurisdiction of the National Mediation Board.

On the other side, respondents had no entitlement to such

a concession, obtained under these circumstances, from

parties that had otherwise indicated their intent to con-

tinue to assert the contrary position on the jurisdictional

issue. Before the Court of Appeals the unions argued that

completion of the merger would moot their claims under

the collective-bargaining agreement to System Board ar-

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bitration. For the reasons stated above, I doubt that

respondents’ claims would ultimately prevail. Moreover,

preservation of respondents’ claims could have been ac-

complished equitably by a speedier resolution of the juris-

dictional issue, rather than by the inequitable last-minute

foisting of a Hobson’s choice on applicants. Finally, the

employees themselves are protected by Delta’s assumption

of the Allegheny-Mohawk Labor Protective Provisions, re-

quiring the continuation of certain fringe benefits, dis-

placement and dismissal allowances for up to four to five

years for employees who lose their jobs or get lesser-

paying jobs, moving and related costs for employees re-

quired to move, integration of seniority lists and binding

arbitration of any dispute relating to the labor protective

provisions. See Allegheny-Mohawk Merger Case, 59 C. A.

B. 22 (1971); Heil Affidavit, 46.

Because the stipulation upon which the lifting of the

injunction was conditioned appears to be either unneces-

sary or extremely inequitable, depending upon its inter-

pretation, and because it appears to me likely that at least

four Justices would vote to grant certiorari and that the

applicants are likely to prevail on the merits, I grant the

requested stay of the Court of Appeals for the Ninth Cir-

cuit’s injunction and order compelling arbitration before

the Systems Boards, pending the timely filing and sub-

sequent disposition of a writ of certiorari in this case.

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APPENDIX J

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

September Term, 1986

No. 87-7040

ASSOCIATION OF FLIGHT ATTENDANTS, AFL-CIO,

Appellant,

WESTERN AIRLINES, INC.

BEFORE: Mikva, Buckley and D.H. Ginsburg, Circuit

Judges

FILED MAR 31 1987

ORDER

Upon consideration of Appellant’s Emergency Motion

for Injunction To Compel Arbitration Pending Appeal and

the Opposition and Response thereto and of Appellee’s

: Emergency Motion For Expedited Appeal And Decision

Before April 1, 1987, it is

ORDERED by the court that Appellant’s motion to com-

pel arbitration be denied. It is

FURTHER ORDERED by the court that Appellee’s mo-

tion to expedite be denied.

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‘ APPENDIX K

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 87-0040

ASSOCIATION OF FLIGHT ATTENDANTS, AFL-CIO,

Plaintiff.

WESTERN AIRLINES, INC.,

Defendant.

MEMORANDUM

This is a labor dispute which has arisen under the Rail-

way Labor Act, 45 U.S.C. § 151 to 188 (1982) (‘““RLA’’).

It comes before the Court on plaintiff union’s (““AFA’’)

verified complaint and dispositive cross-motions. Defendant

Western Air Lines, Inc. is scheduled to merge with Delta

Air Lines, Inc. on April 1, 1987. Western’s employees are

represented by several different unions according to craft,

including AFA. Delta is a non-union carrier. AFA claims

that Western has breached its 1984 collective bargaining

agreement with AFA by failing to bind Delta to the terms

of that agreement.

FACTS

There are no material facts in dispu

(1) On September 9, 1986, Western and Delta entered

into an Agreement and Plan of Merger.

(2) On October 21, 1986, AFA filed a grievance over

Western’s failure to bind Delta to the 1984 collective bar-

gaining agreement.

(3) On November 19, 1986, Western denied the griev-

ance.

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(4) On November 26, 1986, AFA submitted the dispute

to Western’s System Board of Adjustment pursuant to

Section 24 of the collective bargaining agreement, and

Western refused to arbitrate. Section 24(D), established

under 45 U.S.C. § 184 of the RLA, provides for jurisdiction

in the System Board over disputes ‘growing out of griev-

ances or out of interpretation of application of any of the

terms of the’’ collective bargaining agreement but ‘‘shall

not extend to change in hours of employment, rates of

compensation or working conditions ... .”

(5) On December 11, 1986, the U.S. Department of

Transportation gave final approval to the Agreement and

Plan of Merger under the Federal Aviation Act.

(6) On December 18, 1986, as the first step looking

toward merger, Delta acquired 100% control of Western

and became ‘its parent.

<7) On January 8, 1987, AFA filed its complaint with

this Court. Western’s motion to transfer the case to the

U.S. District Court for the Middle District of California!

was denied on January 20, 1987, and the motions now

before the Court were promptly filed and opposed.

(8) In Section 5.9 of the Agreement and Plan of Merger

Delta and Western agreed that Western would continue

to honor its 1984 collective bargaining agreement with

AFA while it was a separate company under Delta’s con-

trol. This has been done and there is no claim to the

contrary. No layoffs are contemplated, either before or

after the merger. If Western merges as planned into Delta

on April 1, 1987, all Western flight attendants presently

represented by AFA will become employees of Delta, sup-

plementig and combining with Delta’s much larger com-

plement of flight attendants. Significantly higher wages

and benefits will be paid flight attendants now represented

' Unions certified as representing Western employees engaged in other

crafts are raising comparable issues there.

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by AFA when they are Delta employees but, of course,

they will be subject to Delta’s own procedures, policies

and rules governing flight attendants.’

(9) AFA’s 1984 collective bargaining agreement with

Western stated in Section 1(C):

This Agreement shall be binding on any successor or

merged Company or Companies, or any successor in

the control of the Company, its parent(s) or subsidi-

ary(ies) until changed in accordance with the provi-

sions of the Railway Labor Act, as amended.

(Emphasis added.)

The Contentions of the Parties

If the merger occurs on April 1, 1987, AFA’s certifi-

cation as the bargaining representative for flight attend-

ants formerly employed by Western who become Delta

employees will automatically be extinguished pursuant to

the National Mediation Board’s established policy.*

Characterizing the controversy as simply a ‘‘minor’’ dis-

pute involving the proper interpretation of Section 1(C)*

and therefore appropriate for resolution by Western’s Sys-

tem Board of Adjustment, AFA contends that Section 1(C)

?In addition, Delta has voluntarily provided significant labor protec-

tive commitments to the Western flight attendants.

’ Where two airlines are merged to form a single transportation sys-

tem the National Mediation Board, to promote stable labor relations

and remove problems of uneven representation, redundancy and con-

fusion, considers the certification of all unions representing the em-

ployees of the acquired airline as extinguished on the date of integration.

See Northwest Airlines, Inc., 13 N.M.B. 399, 400-01 (1986); Republic

Airlines, Inc., 9 N.M.B. 49, 54-56 (1980). See also Air Line Employees

Assoc., Int’) v. Republic Airlines, Inc., 798 F.2d 967, 968-69 n.4 (7th

Cir. 1986), cert. denied, 107 S. Ct. 458 (1986), International Bhd. of

Teamsters v. Texas Int’! Airlines, Inc., 717 F.2d 157, 163 (Sth Cir.

1983).

‘See Elgin, J. & E. Ry. v. Burley, 325 U.S. 711, 723-25 (1945).

K-4

does not allow its collective bargaining agreement to be

extinguished, but rather requires Western ‘‘to bind any

successor or parent to that Agreement,’’® by providing as

a condition to merger that after the merger takes place

Delta accept and be bound by the terms of AFA’s 1984

collectively bargained agreement with Western.6 AFA

seeks an order from this Court directing Western to sub-

mit the issue to the System Board of Adjustment and asks

the Court thereafter to retain jurisdiction to enforce com-

pliance with any award the System Board makes against

Western. If a prompt award is not made the Court is

further requested to preserve the status quo by preventing

the merger pending completion of proceedings before the

System Board.

Western contends that the 1984 collective bargaining

agreement is subject to change in accordance with re-

quirements of the RLA as paragraph 1(C) states, noting

that by operation of the RLA AFA’s certification as the

bargaining representative of Western employees must dis-

solve with the merger. It also contends that a fundamental

question of post-merger representation is presented, and

that since issues of representation are current and directly

involved the System Board lacks jurisdiction under the

RLA and the issues fall under the exclusive jurisdiction

of the National Mediation Board.

Discussion

The situation presented by these conflicting positions is

not one of first impression. Other federal courts have con-

fronted similar labor disputes and their consistent recog-

nition of the primary role of the National Mediation Board

in resolving questions of representation has governed. Pur-

suant to the RLA, 45 U.S.C. §§ 155, 181 and 183, Con-

‘Complaint, 4 17.

"Complaint, ¢ 18.

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gress has clearly relegated all cases involving the

representation of airline employees for collective bargain-

ing purposes to the exclusive jurisdiction of the National

Mediation Board. See General Committee of Adjustment v.

Missouri-K.-T. Ry., 320 U.S. 323, 335-38 (1943); Switch-

men’s Union v. National Mediation Board, 320 U.S. 297,

303-07 (1943); International Brotherhood of Teamsters v.

Texas International Airlines, Inc., 717 F.2d 157, 161-62

(5th Cir. 1983); Air Line Pilots Association v. Texas In--

ternational Airlines, Inc., 656 F.2d 16, 22-24 (2d Cir. 1981).

See also 9 T. Khool, Labor Law § 50.07[2] (1986).

Where both representational issues and “minor” dis-

putes which arguably may not involve representational is-

sues are involved in a single dispute, it is not the role of

a court to attempt to define such minor issues and require

they be segregated for evaluation by the System Board.

As a practical matter the issues inevitably overlap, and

any attempt to divide jurisdiction between the System

Board and the National Mediation Board would defeat the

purposes of the RLA.’ This is particularly true in merger

situations where representational issues inevitably arise and

it is “impossible to look only to the existence of a collective

bargaining agreement and to isolate it from the other op-

erational and representational matters.” International

Brotherhood of Teamsters, supra. 717 F.2d at 163. Thus,

in cases presenting union challenges to airline mergers,

‘“(w]here a representation dispute appears on the face of

the complaint . . . the court is bound to dismiss the ac-

tion.”” Air Line Pilots Association, International, supra

656 F.2d at 24 (citing Ruby v. American Airlines, Inc.,

’ See International Bhd. of Teamsters, supra, 717 F.2d at 164 (‘Given

the [National] Mediation Board's undeniable sole jurisdiction over rep-

resentation matters, we infer from the practical problems of divided

jurisdiction a congressional intention to allow that agency alone to

consider the post-merger problems that arise from existing collective

bargaining agreements’).

K-46

323 F.2d 248 (2d Cir. 1963) (Friendly, J.), cert. denied,

376 U.S. 913 (1964)).

There can be no question that the issue of post-merger

representation is presented by this dispute. AFA itself

recognized in its memorandum in support of summary

judgment that a System Board arbitrator might bind Delta

to the 1984 agreement “if it wants to proceed with an

operational merger,” or might otherwise take action that

would require Delta, a non-party to the 1984 agreement,

to set Western’s flight attendants apart from Delta’s flight

attendants regardless of operational requirements.*

For AFA to characterize this as a minor dispute wholly

within the province of the System Board ignores the real-

ity of the situation and constitutes an attempt to circum-

vent procedures clearly mandated by Congress for

resolution of disputes by the National Mediation Board

under the RLA. See, e.g., Air Line Employees Association,

International v. Republic Airlines, Inc., 798 F.2d 967, 968-

69 (7th Cir. 1986) (per curiam), cert. denied, 107 S. Ct.

458 (1986); International Brotherhood of Teamsters, supra,

717 F.2d at 160-61; Air Line Pilots Association, Inter-

national, supra, 656 F.2d at 23-24.

Conclusion

AFA is entitled to no relief from this Court, and its

motion for summary judgment is denied. Western is

granted summary judgment and the complaint is dismissed

with prejudice. An appropriate Order is filed herewith.

GERHARD A. GESELL

Unitep States District JUDGE

February 20, 1987.

* Plaintiff's Memorandum at 25.

K-7

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBL:

Civil Action No. 87-0040

ASSOCIATION OF FLIGHT ATTENDANTS, AFL-CIO,

Plaintiff,

WESTERN AIRLINES, INC.,

Defendant.

ORDER

Upon consideration of plaintiff's motion for summary

judgment and defendant’s cross-motion for summary judg-

ment and the briefs and exhibits filed on each motion, for

the reasons stated in a memorandum filed herewith, it is

hereby

ORDERED that plaintiff's motion is denied; and it is

further

ORDERED that defendant’s cross-motion is granted, and

plaintiff's complaint dismissed with prejudice; and it is fur-

ther

ORDERED that each party shall bear its own costs.

GERHARD A. GESELL

UNITED STATES DISTRICT JUDGE

February 20, 1987

L-1

APPENDIX L

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

NO. C-87-0402 MHP

INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

AIRLINE DIVISION, ef al.,

Plaintiffs,

Vv.

PaciFic SOUTHWEST AIRLINES, ef al.,

Defendants.

ORDER DISMISSING COMPLAINT

This action under the Railway Labor Act, 45 U.S.C. §

151 et seg., arises out of Pacific Southwest Airlines’ refusal

to arbitrate alleged violations of four collective bargaining

agreements (CBAs) reached between the airline and cer-

tain classes or crafts of its employees presently repre-

sented by the plaintiff union. The dispute centers on the

imminent purchase of PSA by USAir, which intends to

merge the operations of the two airlines. Although the

explicit language of the disputed CBAs oblige PSA to in-

corporate into the terms of any merger agreement a num-

ber of provisions governing the post-merger employment

of its workers, the acquisition agreement reached between

PSA and USAir omits the stipulated terms. PSA refuses

to arbitrate the union’s grievance over the exclusion of

the CBA’s post-merger employment provisions. The union

seeks an order compelling arbitration.

In defense of its refusal to arbitrate, PSA argues that

the proposed terms required by the CBAs bear on the

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determination of the appropriate labor representative for

the post-merger workforce. PSA thus contends that it can-

not be compelled to arbitrate the terms before its System

Adjustment Board, given the National Mediation Board’s

exclusive jurisdiction over representational matters under

the Railway Labor Act. PSA accordingly argues that the

court must dismiss for lack of jurisdiction plaintiff's com-

plaint seeking compulsory arbitration. Defendant USAir

moves separately for dismissal on essentially the same

jurisdictional grounds, though additionally arguing that

plaintiff has failed to state a claim against it for which

relief may be granted. Without reaching plaintiff’s alleged

failure to state a claim against USAir, the court finds that

the terms of the collective bargaining agreement raise rep-

resentational issues requiring the complaint to be dismissed

in its entirety for lack of jurisdiction.

BACKGROUND

Plaintiff International Brotherhood of Teamsters, Airline

Division, currently represents certain classes or crafts of

employees of defendant Pacific Southwest Airlines (PSA)

pursuant to the provisions of the Railway Labor Act, 45

U.S.C. § 151 et seg. In this capacity, the union is signatory

to four collective bargaining agreements governing the

rates of pay, rules, and working conditions of each rep-

resented class or craft. All four agreements expire on De-

cember 31, 1987. Among the provisions of the CBAs is

language obliging PSA to incorporate into any subsequent

merger agreement various terms governing the post-

merger employment of its workers. These provisions pro-

vide, in pertinent part, as follows:

The following protective provisions are applicable

to mergers, consolidations and acquisitions of

PSA operations and those of another carrier(s).

The obligations contained herein are subject to

the acts and obligations »ot being in violation of

L-3

the labor law as determined by statutes or courts

of competent jurisdiction ....

A. In the event of a merger, consolidation or

acquisition of or by PSA with another carrier...

where the operation of the two carriers are to

be integrated so as to create a single carrier

within the meaning of the Railway Labor Act:

2. Where the majority of employees in the...

class or craft of the post-merger carrier were

employees of a carrier other than PSA ... the

following shall apply:

a. The consolidated, post-merger carrier shall

assume the obligations of the IBT [International

Brotherhood of Teamsters] Collective Bargaining

Agreement, and shall maintain the agreement as

to PSA employees represented by the Teamsters

Airline Division prior to the merger_until it is

changed in accordance with Sections 2, 5, and 6

of the Railway Labor Act. The provisions of this

Section shall not apply to the employees in the

... Class or eraft of the post-merger carrier who

are represented by an individual or labor organi-

zation other than the Teamsters ....

b. The consolidated, post-merger carrier shall

recognize the Teamsters Airline Division as the

representative of the employees in the post-

merger ... class or craft who were previously

represented by the Teamsters ....

c. If the employees of the other carrier within

the ... class or craft are unrepresented, the post-

merger carrier shall recognize the Teamsters ...

as the representative of all employees ... if...

the Union is able to present evidence of a ma-

L-4-

jority showing among all employees of the class

Or cert 2...

3. The consolidated, post-merger carrier shall

extend to PSA employees in the ... class or

craft, who were represented by the Teamsters

..., labor protective provisions no less favorable

[than those] in the Allegheny-Mohawk Merger

oe Tre

4. The facilities of PSA ... shall not be in-

tegrated with the facilities of the other airline or

entity involved in the merger ... without agree-

ment of the Teamsters .... The employees of

PSA, as represented by the Teamsters ..., shall

not be integrated with employees of the other

carrier ... without agreement of the Teamsters

C. PSA and/or PSA, Inc. agree that they will

not enter into or execute any agreement of

merger ... without the language contained in

this Section being incorporated into and made

part of such merger ....

Griswold Affidavit, Exhibit 1 at Article 29; Exhibit 2 at

Article 35; Exhibit 3 at Article 42; Exhibit 4 at Article

38.

On December 8, 1986, PSA accepted an offer by USAir

to purchase PSA and merge the airline with its own op-

erations. On January 28, 1987, the Department of Trans-

portation tentatively approved the merger agreement. Final

shareholder approval of the merger is anticipated at the

next corporate meeting of defendant PSA, scheduled for

mid-March 1987. After the acquisition, USAir intends to

operate PSA as a wholly-owned subsidiary for some time

prior to merging the operations of the two airlines. During

this period, PSA will continue to honor and operate under

the terms of the current CBAs negotiated by plaintiff

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union. George Declaration, ¢ 5. Upon the subsequent

merger of the two carriers, USAir has indicated that it

will provide PSA employees with Allegheny-Mohawk labor

protection provisions. George Declaration, ¢ 9. Nonethe-

less, the terms of the acquisition agreement between PSA

and USAir do not include the specific provisions stipulated

by PSA’s collective bargaining agreements regarding the

post-merger employment of its workers, and USAir has

conditioned its purchase on the exclusion of such terms.

PSA currently employs approximately 900 workers in

its ‘‘mechanic and related ernployees”’ craft or class. These

employees are represented by the plaintiff Teamsters.

USAir currently employs approximately 2,300 workers in

its ‘‘mechanic and related employees” craft or class. These

employees are represented by the International Association

of Machinists. PSA currently employs approximately 850

workers in its “flight attendant”’ class or craft, all of whom

are represented by plaintiff union. USAir employs ap-

proximately 2,600 workers in its “‘flight attendant” craft

or class, all of whom are represented by the Association

for Flight Attendants. PSA also employs approximately

2,000 workers in a combined “fleet and passenger service

employees” craft or class, represented by the plaintiff

Teamsters. USAir has no parallel craft or class certifica-

tion. Of the approximately 6,450 USAir workers in fleet

and passenger service positions, 1,700 are represented by

the Teamsters while the balance have not selected a col-

lective bargaining representative.

DISCUSSION

Labor relations in the airline industry are governed by

the provisions of the Railway Labor Act, 45 U.S.C. § 151

et seg. Under the act, disputes between employers and

employees are classified as either minor, major, or rep-

resentational. Int’l Bhd. of Teamsters v. Texas Int'l Air-

lines, Inc., 717 F.2d 157, 158 (5th Cir. 1983). Minor

disputes involve disagreements over the interpretation of

L-6

the terms of existing collective bargaining agreements; ma-

jor disputes involve disagreements over the formation of

such agreements; and representational disputes involve the

determination of the employee representative for purposes

of collective bargaining and other aspects of employer-

employee relations. Jd.

Under the statute, a different mechanism exists for the

resolution of each type of dispute. Minor disputes are com-

mitted to an arbitration process before a system board of

adjustment, which is the mandatory and exclusive forum

for the resolution of such disagreements. 45 U.S.C. § 184.

Representational disputes, governed by section 2, Ninth of

the Railway Labor Act, are committed to the exclusive

jurisdiction of the National Mediation Board (NMB), which

is empowered to investigate disputes and certify the ap-

propriate labor representative. 45 U.S.C. § 152, Ninth;

Switchmen’s Union of N. Am. v. Nat’l Mediation Bd., 320

U.S. 297 (1943). While a court lacks the authority to in-

terpret the terms of a collective bargaining agreement, it

can act on a complaint to compel arbitration of a minor

dispute before the authorized board of system adjustment.

Int’l Ass’n of Machinists v. Central Airlines, Inc., 372 U.S.

682, reh’g denied, 373 U.S. 947 (1963). When faced with

a complaint implicating representational issues, though, a

court cannot intercede and is obliged to dismiss the action

for lack of jurisdiction in deference to the National Me-

diation Board’s exclusive dominion over the field of em-

ployee representation. Air Line Employees Ass’n, Int'l v.

Republic Airlines, Inc., 798 F.2d 967, 969 (7th Cir.), cert.

denied, ___U.S. —_, 107 S. Ct. 458 (1986).

The plaintiff union attempts to characterize the present

dispute as a minor disagreement over the interpretation

and application of an existing collective bargaining agree-

ment, and thus seeks an order to compel arbitration of

its grievance before the System Adjustment Board.

Defendant PSA argues conversely that while the dispute

arises in the context of contractual language, the disputed

L-7

terms bear directly on the determination of the appropriate

labor representatives for the post-merger carrier’s em-

ployees. The defendant therefore argues that the complaint

must be dismissed for lack of jurisdiction.

While the classic representational dispute involves a dis-

agreement between two unions or a group of employees

and a union over the determination of an appropriate col-

lective bargaining representative, an overt conflict is not

required to raise a representational issue. ‘‘A represen-

tation dispute may occur even if only one union claims to

represent the employees if there is a question whether a

majority of the craft or class desires the. union’s repre-

sentation. Represent:.tion disputes include issues whether

two related carriers will be treated as one for represen-

tation purposes, and whether a craft or class must be

systemwide or may be split for representation purposes.”’

Int’l Bhd. of Teamsters v. Texas Int’l Airlines, Inc., 717

F.2d at 159. Thus in the context of mergers, courts have

held consistently that although disputes over the interpre-

tation and continuing effect of existing collective bargain-

ing agreements may appear contractual on their face, and

may pit a union only against the employer or its members,

such disputes must be left to the execlusive authority of

the National Mediation Board if question of post-merger

representation are implicated.' Bhd. of Railway and Steam-

' Plaintiff attempts to rebut the weight of this authority with the

holding of courts interpreting section 301 of the Labor Management

Relations Act, 29 U.S.C. § 185. See, e.g., John Wiley & Sons, Inc. v.

Livingston, 376 U.S. 543 (1964), Howard Johnson Co., Inc. v. Detroit

Local Joint Exec. Bd., 417 U.S. 249 (1974); Amalgamated Clothing and

Textile Workers Union v. Ratner Corp., 602 F.2d 1363 (9th Cir. 1979).

The significant differences between the Labor Management Relations

Act and the Railway Labor Act, though, make plaintiff's comparison

purely obfuscatory. Section 301 empowers courts to interpret and en-

force contractual agreements in a manner wholly unauthorized under

the Railway Labor Act, which defines for courts a far more deferential

and limited role in its implementation. See Air Line Pilots Ass'n, Int'l

v. Transamerica Airlines, Inc., 615 F. Supp. 371, 375 (N.D. Cal. 1985).

L-8

ship Clerks v. United Air Lines, Inc., 325 F.2d 576, 579

(6th Cir. 1963), cert. denied, 377 U.S. 903, cert. dismissed,

379 U.S. 26 (1964); Int’l Bhd. of Teamsters v. Texas Int'l

Airlines, Inc., 717 F.2d at 158; Air Lines Employees Ass'n,

Int'l v. Republic Airlines, Inc., 798 F.2d at 968; Int’l Ass’n

of Machinists v. Northeast Airlines, Inc., 536 F.2d 975,

977 (1st Cir.), cert. denied, 429 U.S. 961 (1976); see Air

Line Pilots Ass’n, Int’l v. Texas Int'l Airlines, Inc., 656

F.2d 16, 18 (2d Cir. 1981).

There is no question that this dispute raises post-merger

representational issues over which the court has no juris-

diction. The terms of the collective bargaining agreements

which plaintiff seeks to enforce bear directly on the post-

merger representation of employees of both PSA and

USAir. Since the disputed terms arise in the context of

contractual language prospectively obliging PSA to assure

the inclusion of certain terms in any subsequent merger

agreement, the provisions do not purport to directly gov-

ern the post-merger employment and representation of any

employee. Nonetheless, courts have consistently held that

such terms effectively deny the National Mediation Board’s

sole jurisdiction over representation matters.? Courts

therefore have refused to compel arbitration over the fail-

ure of an acquired or acquiring employer to give effect to

CBA language purporting to bind successors to existing

representational provisions, insofar as the disputed con-

tractual terms effectively raise post-merger representa-

tional issues falling outside the courts’ jurisdiction. Bhd.

of Railway and Steamship Clerks, 325 F.2d at 577; Ass’n

of Flight Attendants v. Western Airlines, Inc., No. 87-0040,

slip op. (D.D.C. February 20, 1987). The instant action is

2 The collective bargaining agreements here ‘n dispute explicitly ac-

knowledge that the disputed language must be subordinated to the

requirements of the law: each states that its provisions regarding post-

merger employment and representation are to be given effect only

insofar as they are not ‘‘in violation of the labor law as determined

by statutes or courts of competent jurisdiction.”

L-9

indistinguishable from these cases; while the disputed lan-

guage here is more explicitly binding than the successor-

ship language there challenged, both would unambiguously

require the same representational obligations if given ef-

fect.’

The two cases cited by plaintiff which purportedly con-

tradict this interpretation are clearly distinguishable. One

is a decision by the court in Ass’n of Flight Attendants v.

Republic Airlines, Inc., No. 86 C 3164, slip op. (N.D. Ill.

June 11, 1986), rendered prior to the completion of Re-

public’s merger with Northwest Airlines. There the plaintiff

union brought an action to compel Republic to arbitrate

its alleged noncompliance with a provision of its CBA re-

quiring it to assure that Allegheny-Mohawk labor protec-

tion provisions be included in any subsequent merger

agreement. The court held that the dispute was arbitrable.

The holding is critically distinguishable from the case at

bar insofar as there was no post-merger representation

issue on the face of the complaint; labor protection pro-

visions, not post-merger representational arrangements,

were in dispute. To the extent, though, that the court

stated without authority and in dicta that it “should not

and need not reach out and consider whether or not the

ordering of arbitration will somehow impact the represen-

tation of all the flight attendants after the merger,’’ the

comment flatly contradicts the long and consistent line of

precedent requiring courts to look beyond the face of a

complaint in search of representational issues disguised as

arbitrable contract disputes. As the court stated in Bhd.

of Railway and Steamship Clerks, ‘‘[llooking through form

to substance, we agree with the District Court that, al-

’In an action to compel arbitration involving extremely analogous

facts and equally explicit agreement provisions, Judge Ideman recently

dismissed for lack of jurisdiction a complaint before him filed by the

plaintiff in this action. Jnt’l Bhd. of Teamsters v. Western Air Lines,

Inc., No. CV 86-7921 JMI (Px), slip op. (C.D. Cal. February 13, 1987).

Cia hall * wes

L-10

though the suit is cast in the form of an action under the

law of contracts, it in fact involves a representation dis-

pute. Even though an action is brought as one sounding

in contract the courts have no jurisdiction ‘where validity

of the contract depends upon the merits of a represen-

tation dispute.’ "’ 325 F.2d at 579.

The other case relied upon by plaintiffs, Air Line Pilois

Ass'n, Int’l v. Texas Int'l Airlines, Inc., 567 F. Supp. 56

(S.D. Tex. 1983); is also distinguishable. The grievance on

which the union sought to compel arbitration was based

strictly on a successor clause in the context of a corporate

reorganization, rather than a merger involving multiple

unions. At least on its face, the complaint in that action

did not allege representational issues. To the extent that

representational issues were implicated, this court respect-

fully disagrees with the holding and chooses to follow the

predecessor case in the Second Circuit involving the same

dispute, Air Line Pilots Ass’n, Int’l v. Texas Int’l Airlines,

Inc., 656 F.2d at 16. In the Second Circuit case the com-

plaint made reference to representational issues. Despite

the union’s characterization of the issue as whether the

employer could avoid provisions of the collective bargaining

agreement by forming another company and transferring

its operations to it, the court held that the complaint sought

resolution of a representational dispute and was within the

exclusive jurisdiction of the NMB.

Plaintiff insists that this is a pre-merger case and that

the court should look only at the pre-merger side of the

transaction. The union argues that it is merely seeking to

enforce contract provisions with PSA. Thus, it claims, the

arbitrator will not be required to decide representational

issues but only restrain PSA from completing the merger

until it has complied with particular terms of the collective

bargaining agreement. The particular terms it seeks to

enforce are clearly representational in nature.

L-11

The line plaintiff seeks to construct between pre-merger

and post-merger activity is not so bright. Although the

merger has not closed, the dispute contemplates post-

merger representation in its clearest form. The complaint

is not ambiguous about that. In another pre-merger case,

Ass’n of Flight Attendants v. Western Airlines, Inc., No.

87-0040, slip op., the court was faced with the same prob-

lem; it reached the same result as this court does, con-

cluding that to treat the matter as a minor dispute “‘ignores

the reality of the situation and constitutes an attempt to

circumvent procedures clearly mandated by Congress for

resolution of disputes by the National Mediation Board

under the RLA.”’ Slip op. at 7. Other pre-merger cases

agree. See Air Line Employees Ass’n, Int'l v. Republic

Airlines, Inc., 798 F.2d at 967 (finding exclusive jurisdic-

tion in the NMB in a case where the merger had been

approved by the Department of Transportation, but was

not yet effective at the time the action was filed); Jnt’l

Bhd. of Teamsters v. Western Airlines, Inc., No. CV 86-

7921 JMI (Px), slip op. (C.D. Cal. February 13, 1987). The

effort to craft the terms of the agreement to avoid NMB

jurisdiction is of no avail. It is clear that the purport of

the disputed provisions is to determine representation

which is strictly within the jurisdiction of the NMB.

Examination of the specific provisions which plaintiff

seeks to enforce reveals that each inarguably raises post-

merger representational issues beyond the court’s juris-

diction. First, in those classes or crafts where USAir em-

ployees have already designated a representative other

than the Teamsters, the Teamsters seek to enforce CBA

terms upon the post-merger carrier which explicitly require

that the Teamsters continue as the designated represent-

ative for PSA employees whom it now represents. Thus

in the flicht attendant and mechanic classes, where the

employees of USAir have designated unions other than the

Teamsters as their labor representative, enforcement of

the disputed terms of the CBAs would require the frag-

L-12

mentation of labor representation within classes or crafts

of the post-merger carrier.

This effect clearly contravenes the policy of the National

Mediation Board to certify representatives on a system-

wide basis, and infringes upon its exclusive jurisdiction

over the determination of ‘whether a craft or class must

be systemwide or may be split for representation pur-

poses.”’ Texas Int’l Airlines, 717 F.2d at 159. As the court

in Texas Int'l Airlines observed,

[t]he Mediation Board has itself adopted the rule

that, upon a merger of two airlines, ‘‘all certi-

fications ... were extinguished by operation of

law.”” Republic Airlines, Inc. and Hughes Air

Corp., 8 NMB 49 (1980). In reaching this con-

clusion, the Board noted that permitting certifi-

cations to survive a merger would lead to

‘“‘uneven representation, duplication of effort, and

confusion.”” 8 NMB at 54. It would reduce the

ability of airlines to integrate operations and to

maintain a single system. 8 NMB at 55.... One

clerk would have a union representative; two of

his neighbors would be unrepresented. One em-

ployee’s working conditions and grievance pro-

cedures would be governed by a collective

bargaining agreement; two of his neighbors would

not. We defer to the Board’s rationale, based on

the Board’s expertise and the statutory delega-

tion of authority to it, to determine disputes con-

cerning who are the representatives of the

carrier’s employees.

717 F.2d at 163. Thus to compel the parties to arbitrate

a CBA provision requiring the certification of plaintiff

Teamsters to represent a minority fraction of employees

in certain post-merger classes or crafts clearly would tres-

pass upon representational matters solely within the ju-

risdiction of the National Mediation Board. See also Bhd.

L-13

of Railway and Steamship Clerks, 325 F.2d at 579 (“If

the District Court had exercised jurisdiction in this case

and had granted the relief sought in the complaint, such

a determination clearly could have applied to no more than

the 2700 former Capital employees, constituting a minority

of this class or craft of appellee’s employees, 530 of whom

are now represented by the International Association of

Machinists. Such an impracticable result demonstrates the

soundness of the holding .. . that there is to be no judicial

intervention in such representation disputes.’’)*

Second, the Teamsters seek to compel arbitration to

enforce terms of the CBAs requiring that the Teamsters

‘ Plaintiff argues that labor representatives can be certified on a less

than systemwide basis if the employer volu ‘arily consents to the ar-

rangement. ‘‘Nothing in federal labor law precludes a successor from

voluntarily assuming, as part of its acquisition arrangements, the ob-

ligations of labor agreements, including recognition of the union.”’

Plaintiff's Memorandum at 24. It is clear, though, that USAir will not

voluntarily recognize post-merger labor representatives on a less than

systemwide basis within any given craft or class; plaintiff admits as

much by seeking to compel the defendants to abide by such an ar-

rangement. Therefore, since the issue raised is not what an employer

can voluntarily agree to but rather what an employer can be compelled

to do, plaintiff's argument is misplaced. See Summit Airlines, Inc. v.

Teamsters Local Union No. 295, 628 F.2d 787, 795 (2d Cir. 1980) (‘‘It

does not follow, however, that because Summit could recognize Local

851 voluntarily, the Union may, upon Summit’s refusal to do so, ignore

section 2, Ninth .... The legislative history reflects a preference for

classwide representation ....’’) The holding in Burlington Northern,

Inc. v. The American Ry. Supervisors Ass’n, 503 F.2d 58 (7th Cir.

court held that a successor who voluntarily assumed and abided by the

collective bargaining provisions of an acquired entity, who subsequently

repudiated the assumed agreement because the bargaining unit was

less than systemwide, could be compelled to arbitrate the enforceability

of its agreement with the unit. Here USAir, the acquiring entity, has

not voluntarily assumed the obligations of the prior agreement, and in

fact expressly refuses to do so. This posture can hardly be characterized

as a voluntary and binding recognition analogous to that in Burlington

Northern.

L-14

be designated the representative of all post-merger em-

ployees in those classes or crafts where USAir employees

have not designated a collective bargaining representative,

and where PSA employees have selected the plaintiff union.

This provision would affect a large number of employees

in the fleet and passenger service areas, where USAir

employees have not yet certified a collective bargaining

representative and where the plaintiff currently represents

PSA employees. Again, there can be no question that this

provision implicates representational issues solely within

the jurisdiction of the National Mediation Board. While the

disputed provision of the CBAs requires the Teamsters to

demonstrate majority support within one year of the

merger to maintain its representation status, the provision

nonetheless predetermines the collective bargaining rep-

resentative for classes or crafts of the post-merger carrier

within which a majority of employees have never selected

representation. This baldly excludes the National Mediation

Board from a process over which it has exclusive authority,

and thus cannot be placed before a system board of ad-

justment for arbitration as a minor dispute.

Finally, the Teamsters seek to enforce a number of sub-

stantive provisions regarding the post-merger employment

of PSA workers, including the integration of the airlines’

facilities and seniority lists, the continued application of

the existing collective bargaining agreements, and the ex-

tension of Allegheny-Mohawk labor protection provisions

to PSA employees. While these provisions less explicitly

implicate representational issues than those discussed

above, they nonetheless fa!! beyond this court’s jurisdiction

to compel arbitration. As the court in Jnt’l Bhd. of Teams-

ters v. Texas Int’l Airlines, Inc., stated with respect to

* USAir has indicated that it will provide Allegheny-Mohawk labor

protection provisions to PSA employees. It is unclear whether the union

nonetheless seeks to arbitrate a grievance with respect to the provision

of such protections. o

L-15

the continued application of a collective bargaining agree-

ment, ‘‘[t]he continuance in force of ... [the] agreement,

however, inevitably entailed not only the enforcement [of

its provisions] but also the requirement that the Company

bargain with the Union concerning those matters... .

Thus, the Union has an indispensable role in administering

the agreement .. . . Continuation of the contract in force

unavoidably constitutes a determination of employee rep-

resentation... .’’ 717 F.2d at 161. Significantly, the CBA

terms purporting to govern the post-merger integration of

the two airlines’ facilities and seniority lists explicitly re-

quire the involvement and approval of the plaintiff union.

To the extent that any of these matters are entirely

divorced from representational issues, though, and actually

do constitute minor disputes, it is inappropriate for the

court to attempt to distribute the issues between the Na-

tional Mediation Board and the System Adjustment Board.

As Judge Gesell observed,

[w]here both representational issues and ‘‘minor”’

disputes which arguably may not involve repre-

sentational issues are involved in a single dispute,

it is not the role of a court to attempt to define

such minor issues and require they be segregated

for evaluation by the System Board. As a prac-

tical matter the issues inevitably overlap, and any

attempt to divide jurisdiction between the System

Board and the National Mediation Board would

defeat the purposes of the RLA. This is particu-

larly true in merger situations where represen-

tational issues inevitably arise and it is

‘impossible to look only to the existence of a

collective bargaining agreement and to isolate it

from the other operational and representational

matters.’

(citations omitted) Ass’n of Flight Attendants v. Western

Airlines, Inc., No. 87-0040, slip op. at 5-6; see also Texas

L-16

Int'l Airlines, 717 F.2d at 164. Thus ‘‘as soon as the action

reveals a representation dispute, the court is required to

dismiss the complaint.’’ Air Line Pilots Ass’n, Int'l v. Texas

Int'l Airlines, Inc., 656 F.2d at 23.

ACCORDINGLY, since this complaint raises represen-

tational issues over which the court has no Jurisdiction,

the action is dismissed with prejudice.

IT IS SO ORDERED.

DATE: MAR 20, 1987 MARILYN HALL PATEL

MARILYN HALL PATEL

United States District Judge

M-1

APPENDIX M

STATUTORY MATERIAL

I. Railway Labor Act, Section 2, Fourth; 45 U.S.C. §

152, Fourth

Employees shall have the right to organize and bargain

collectively through representatives of their own choosing.

The majority of any craft or class of employees shall have

the right to determine who shall be the representative of

the craft or class for the purpose of this chapter. No

carrier, its officers or agents, shall deny or in any way

question the right of its employees to join, organize, or

assist in organizing the labor organization of their choice,

and it shall be unlawful for any carrier to interfere in any

way with the organization of its employees, or to use the

funds of the carrier in maintaining or assisting or con-

tributing to any labor organization, labor representative,

or other agency of collective bargaining, or in performing

any work therefor, or to influence or coerce employees in

an effort to induce them to join or remain or not to join

or remain members of any labor organization, or to deduct

from the wages of employees any dues, fees, assessments,

or other contributions payable to labor organizations, or

to collect or to assist in the collection of any such dues,

fees, assessments, or other contributions: Provided, That

nothing in this chapter shall be construed to prohibit a

carrier from permitting an employee, individually, or local

representatives of employees from conferring with man-

agement during working hours without loss of time, or to

prohibit a carrier from furnishing free transportation to

its employees while engaged in the business of a labor

organization.

II. Railway Labor Act, Section 2, Ninth; 45 U.S.C. §-

152, Ninth.

If any dispute shall arise among a carrier’s employees

as to who are the representatives of such employees des-

M-2

ignated and authorized in accordance with the require-

ments of this chapter, it shall be the duty of the Mediation

Board, upon request of either party to the dispute, to

investigate such dispute and to certify to both parties, in

writing, within thirty days after the receipt of the invo-

cation of its services, the name or names of the individuals

or organizations that have been designated and authorized

to represent the employees involved in the dispute, and

certify the same to the carrier. Upon receipt of such cert-

ification the carrier shall treat with the representative so

certified as the representative of the craft or class for the

purposes of this chapter. In such an investigation, the

Mediation Board shall be authorized to take a secret ballot

of the employees involved, or to utilize any other appro-

priate method of ascertaining the names of their duly des-

ignated and authorized representatives in such manner as

shall insure the choice of representatives by the employees

without interference, influence, or coercion exercised by

the carrier. In the conduct of any election for the purposes

herein indicated the Board shall designate who may par-

ticipate in the election and establish the rules to govern

the election, or may appoint a committee of three neutral

persons who after hearing shall within ten days designate

the employees who may participate in the election. The

Board shall have access to and have power to make copies

of the books and records of the carriers to obtain and

utilize such information as may be deemed necessary by

it to carry out the purposes and provisions of this para-

graph.

III. Railway Labor Act, Section 201; 45 U.S.C. § 181

All of the provisions of subchapter I of this chapter

except Section 153 of this title are extended to and shall

cover every common carrier by air engaged in interstate

or foreign commerce, and every carrier by air transporting

mail for or under contract with the United States Gov-

ernment, and every air pilot or other person who performs

any work as an employee or subordinate official of such

M-3

carrier or carriers, subject to its or their continuing au-

thority to supervise and direct the manner of rendition-of

his service.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.