Opposition Brief — Delta Air Lines, Inc. v. International Brotherhood of Teamsters

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No. 86-1855 ! sosert: 2 — JR,

IN THE Lee

Supreme Court of the United States

OCTOBER TERM, 1986

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

. Petitioners,

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-

FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,

AIRLINE DIVISION, and LOCAL UNION No. 2707, af- |

filiated 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

BRIEF FOR TEAMSTER RESPONDENTS

IN OPPOSITION

ROLAND P. WILDER, JR.

Counsel of Record

WILLIAM LURYE

BAPTISTE & WILDER, P.C.

1919 Pennsylvania Avenue, N.W.

Suite 505

Washington, D.C. 20006

(202) 223-0723

WILMA B. LIEBMAN

25 Louisiana Avenue, N.W.

Washington, D.C. 20001

(202) 624-7464

Attorneys for

Teamster Respondents

WILSON - Eres PRINTING Co., INC. - 789-O096 - WASHINGTON, D.C. 20001

® EBB «0

COUNTERSTATEMENT OF THE

QUESTIONS PRESENTED

1. Whether a grievance over the alleged premerger

breach of a collectively bargained successorship clause,

which is lodged with and seeks relief only from the signa-

tory employer, is an arbitrable “minor” dispute under

the Railway Labor Act.

2. Whether a federal district court has jurisdiction to

compel the signatory employer to submit to arbitration

of a grievance over the alleged premerger breach of a

successorship clause before a system board of adjustment,

where the system board is not called upon to designate

a representative for postmerger employees.

(i)

TABLE OF CONTENTS

Page

COUNTERSTATEMENT OF QUESTIONS PRE-

i ceheiancchcnetpcnricndnashanetcentonelaannniciniessinntion i

Se I TED ciicritnansenninonegenteeentnasminiagnanscinneontan iii

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a ta iar en sabi clei ccepnnsecinennsinsisciononnancinicieninisi 2

STATUTORY PROVISIONS INVOLVED ..................... 2

STATEMENT OF THE CASE ...............2........-.sccss-ecsceee 2

I ihe iaiciricpanneinjensdinininaaananiaesionnincsipnhains 2

Pe I TI an oniiacsinsccsasaccccncncncncasconsccesecss 4

The Proceedings Before This Court ......................... 6

REASONS FOR DENYING THE WRIT ....................... 6

I. THE DECISION OF THE COURT BELOW,

CONCLUDING THAT AN ARBITRABLE

MINOR DISPUTE EXISTED, FOLLOWS

THIS COURT’S ESTABLISHED PRECE-

DENTS, AND IS CONSISTENT WITH THE

PETE, GNI TIED a hesincnscrennensscssnsccensessnsnsses 6

A. Only A System Board of Adjustment Has

Jurisdiction Over Minor Disputes; The Dis-

pute Over The Successorship Clause Is A

adil ale Reaatasicnessbegunmensndénknininks 6

B. Arbitration Of A Successorship Clause Does

Not Give Rise To A Representation Dispute,

For The Arbitrator Is Not Called Upon To

Determine A Collective Bargaining Repre-

sentative Or The Appropriate Craft Or Class

eS 2 A eS eee 10

II.

III.

TABLE OF CONTENTS—Continued

NO OTHER CIRCUIT COURT OF APPEALS

HAS DECIDED WHETHER A DISPUTE

ARISING UNDER A SUCCESSORSHIP

CLAUSE IN AN RLA AGREEMENT IS ARBI-

TRABLE, AND THEREFORE AN INTER-

CIRCUIT CONFLICT CANNOT EXIST ............

THE DUTY TO ARBITRATE SUCCESSOR-

SHIP CLAUSES PRESENTS NO ISSUE DET-

RIMENTAL TO THE AIR AND RAIL

TRANSPORTATION INDUSTRIES ..................

oho asa rectic isaloniaiaincadinlinmernawdbiatnnsniobenineiicsnn

ai chase cise acacia Ae pibibapspisadtbice ai

Statutory Provisions: Railway Labor Act §§ 2,

First and 204, 45 U.S.C. §§ 152, First and 184;

Labor-Management Relations Act §301, 29

IEEE EASELS penne ae eS

. Letter of Agreement of September 1, 1984 Be-

tween International Brotherhood of Teamsters,

Airline Division and Western Airlines, Ince. .......

. Board of Arbitration Contract Provisions Con-

tained in Collective Bargaining Agreements Be-

tween International Brotherhood of Teamsters,

Airline Division and Western Airlines, Inc. .........

. Bench Opinion in Association of Flight Attend-

ants v. Republic Airlines, Inc., No. 86 C 3164

Ci i I i IN a chisS ac sccn atten tesoibtigliaescust’s

. Amended Order of the Court of Appeals for the

Ninth Circuit in JBTCHWA, Local Union No.

2707 v. Western Airlines, Inc., Nos. 87-5657 /5667

OR ptt EMG ASD ie PO ek Nt OO

Page

A-1

B-1

C-1

TABLE OF AUTHORITIES

CASES Page

Air Line Employees Association v. Republic Air-

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

DOE a, Be oc sdvecc ccenscemndcaabekaee 16, 17

Air Line Pilots Association v. Department of

Transportation, 791 F.2d 172 (D.C. Cir. 1986) .. 22

Air Line Pilots Association Vv. Texas Int’l Airlines,

567 F. Supp. 66, motion for stay denied, 567 F.

i Bt ke | ee nen nee 8,10, 18

Air Line Pilots Association v. Texas Int'l Airlines,

OB8 F6 OR CO Ce BIO enciscniienweices, 20

Airline Stewards Association v. Caribbean Atlantic

Airlines, Inc., 412 F.2d 289 (1st Cir. 1969) _....... 8

Amazx Coal Co. v. NLRB, 614 F.2d 872 (3d Cir.

1980), rev’d in part on other grounds, 453 U.S.

TD CARRS ance nd kh oe ee eee 8, 10

Andrews v. Louisville & N.R.R., 406 U.S. 320

CRITI i ieisncssgicsekiekixentnsnctat coats eau eaee eta: 7,9

Association of Flight Attendants v. Republic Air-

lines, Inc., 86 C 3164 (N.D. Ill. June 11, 1986)... 8, 10

Association of Flight Attendants v. Western Air

Lines, Inc., No. 87-0040 (D.D.C. Feb. 20, 1987) .. 20

Brotherhood of Locomotive Engineers v. Missouri-

em Fm 8s et ean een 6

Brotherhood of R.R. Trainmen V. Chicago River &

Re me ft Fy BARN Eee ewe eee 7

Brotherhood of R.R. Trainmen Vv. Jacksonville Ter-

minal Co., 394 U.S. 8369 (1969) ............................. 9

Brotherhood of Ry. and S.S. Clerks v. United Aitr-

lines, Inc., 325 F.2d 576 (6th Cir. 1963), cert.

dismissed, 379 U.S. 26 (1964) ...........00000222222222-200-- 18

Brotherhood of Ry. Clerks v. Ass’n of Non-Contract

Employees, 380 U.S. 650 (1965) ...........----............ 16

Burlington Northern v. American Ry. Supervisors

Ass’n, 503 F.2d 58 (7th Cir.), cert. denied, 421

Te Noa indies eileen ibis 13

Carey Vv. Westinghouse, 375 U.S. 261 (1964) ........... 11

Communications Workers v. AT&T Technologies,

gt | perenne nen 8, 9-10, 16

TABLE OF AUTHORITIES—Continued

Elgin, J. & E. R.R. v. Burley, 325 U.S. 711 (1945) ..

Flight Eng’rs Int'l Ass’n V. Eastern Air Lines, Inc.,

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

Eb | ee

Flight Eng’rs Int'l Ass’n V. NMB, 294 F.2d 905

(D.C. Cir. 1961), cert. denied, 368 U.S. 956

CGB) .....<encenanc-snistetissideshapsseiaisaaaiissseal iain inna

W.R. Grace & Co. v. Local 759, Rubber Workers,

461 U.S. THT (RGR ciccccccececcneeee

Graphic Communications Union v. Chicago Tribune

Co., TO F.24 13 (7G CH. Tee

Howard Johnson v. Detroit Local Jt. Exec. Bd., 417

U.S. BED (1GGE) .cccccccscicesstmatiesaaiaes

Ind. Union of Flight Attendants v. Department of

Transportation, 803 F.2d 1029 (9th Cir. 1986) ....

International Association of Machinists v. Alitalia

Airlines, 600 F. Supp. 268 (S.D.N.Y. 1984), aff’d,

Cee FR} fe A. | Re em

International Association of Machinists v. Aloha

Airlines, 776 F.2d 812 (9th Cir. 1985)

International Association of Machinists v. Central

Airlines, Inc., 372 U.S. 682 (1963) ..........0-00000...

International Association of Machinists v. North-

east Airlines, Inc., 473 F.2d 549 (1st Cir.), cert.

denied, 409 U.S. G45 (1078) ......cccccccccceccecececsceeeee

International Association of Machinists v. North-

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

denied, 429 U.S. 961 (1976) ........:..........................

International Association of Machinists v. Republic

Airlines, Inc., 761 F.2d 1386 (9th Cir. 1985)...

International Association of Machinists, Local 1226

v. Panoramic Corp., 668 F.2d 276 (7th Cir.

| | Cree oR a

International Brotherhood of Teamsters v. Texas

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

COR. TID vansnnciscsdiciscticeededadens mate eee

Local Jt. Exec. Board v. Royal Center, Inc., 796

F.2d 1159 (9th Cir. 1986), cert. denied, 55

U.S.L.W. 3468 (Jan. 18, 1987) .....0..... ec.

Page

Vii

TABLE OF AUTHORITIES—Continued

Lone Star Steel Co. v. NLRB, 639 F.2d 545 (10th

Cir. 1980), cert. denied, 450 U.S. 911 (1981)...

NLRB vy. American Nat’l Ins. Co., 343 U.S. 395

dr scaeliameimane

NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1

a a sealintiieonenians

Order of R.R. Telegraphers, Division 14 v. Leighty,

298 F.2d 17 (4th Cir.), cert. denied, 369 U.S.

a alsanaitbioannnene

Order of Ry. Conductors v. Pitney, 326 U.S. 561

aaa ic aaah aati dibias hacks eiinan bila potions

REA Express, Ine. v. Ry. Clerks, 459 F.2d 226

(5th Cir.), cert. denied, 409 U.S. 892 (1972) .......

Slocum v. Delaware, L. & W. R.R., 339 U.S. 239

ati the snttecieliciactnnlisamnidihianpniaadenaciibieralsineinmns

Southern Ry. Co. v. Brotherhood of Locomotive

Firemen, 384 F.2d 323 (D.C. Cir. 1967) -............

Steelworkers v. Warrior & Gulf Navigation Co.,

ea aecenbianeninse

Summit Airlines, Inc. v. Teamsters Local 295, 628

I II siiicccninccersduiinceneanendatcnosernsisnssnne

Switchmen’s Union v. National Mediation Board,

135 F.2d 785 (D.C. Cir.), rev’d on other grounds,

gS EE oe

Switchmen’s Union of North America Vv. So. Pacific

Co., 398 F.2d 443 (9th Cir. 1968)...

Teamsters Local 70 v. Western Pacific R.R., 809

ef kg ft |) RRP e RA

Textile Workers v. Lincoln Mills of Alabama, 353

Ne I

TTL Distribution, Inc. v. Local 99, ILGWU, 551

F. Supp. 649 (S.D.N.Y. 1982), aff’d without

opinion, 729 F.2d 1444 (2d Cir. 1983) ......00000.

UMWA Vv. Eastover Mining Co., 603 F. Supp. 1038

CO UE II ei oth ics cc tntedlicensiiniadictansnddindgimmndameactiiakas

UMWA Health & Retirement Funds v. Robinson,

455 U.S. 562 (1982)

Page

Vili

TABLE OF AUTHORITIES—Continued

Page

United Mine Workers, District 17 v. Allied Corp.,

765 F.2d 412 (4th Cir.) (en banc), cert. denied,

RR LTT SR ON eae 9,12

UTU Vv. Baker, 499 F.2d 727 (7th Cir.), cert. denied,

RE RF eee ae ae 8

UTU v. Burlington Northern, Inc., 458 F.2d 354

DRI Re Wa ets Se Dae SC 8

UTU v. Penn Central Transp. Co., 505 F.2d 542

BREA ee OES A oa cd aA eee 8

UTU Local 1477 v. Baker, 482 F.2d 228 (6th Cir.

BMAF SANS RDM Ie a0 Om SRN NO 8

Virginian Ry. v. System Federation No. 40, 300

DI III nck ihc ttimcnetichsadinicicinediciadenscnilaennetbiiaene 13

Whitehouse v. Illinois Central R.R., 349 U.S. 366

ao copntielapthddiadiibapedniestatenniananondinn 11, 12, 21

John Wiley & Sons, Inc. v. Livingston, 376 U.S.

548 (1964) .............. bb decsetesndietlddniceaetcnseatladpesiedbipdilicodasin 10, 11

AGENCY DECISIONS

Atroal, 14 N.M.B. 38 (1966) ....................n................. 13

Delta-Western Acquisition Case, DOT ‘Onder 86-

I i tlc 19, 22

Galveston Wharves, 4 N.M.B. 200 (1962) ............... 13

Midway-Air Florida Acquisition Case, DOT Order

85-6-33 (June 14, 1986) ................... ect eccceseeecceeeeeeces 22

Northwest Airlines, Inc., 18 N.M.B. 399 (1986)...... 12, 15

Pan American World Airways, Inc., 7 N.M.B. 225

RAE a 7 RSD AEE Ra oem nO a RE 15

Republic Airlines, 8 N.M.B. 49 (1980) .....000000000000.... 14

Republic Airlines, Inc., 6 N.M.B. 817 (1979) ......... 13

Southwest Airlines, 8 N.M.B. 684 (1981) .....00000..... 13

TWA/Ozark, 14 N.M.B. 218 (1987) ......0000000002.... 18, 14, 15

ARBITRATOR’S AWARDS

Martin Podany Associates, 80 Lab. Arb. (BNA)

658 (1983) (Gallagher, Arb.) ....00000000000000000000. 9,12

Sexton’s Steakhouse, Inc., 76 Lab. Arb. (BNA)

re RD CN SD vaeaititcccctitcedenctecnccnctnesansecensses 9

TABLE OF AUTHORITIES—Continued

STATUTES

29 U.S.C. § 159, § 9 of the National Labor Relations

ee _. aimstbintiimniniamaicinmmncinmmguannianeninonsens

29 U.S.C. § 185, Labor-Management Relations Act

GO assassin nnnssccesssecesncsesennsnenencnecennsennscsennnnensnsnasecs

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

amended :

45 U.S.C. § 151a, Section 2 ............----------11---0++

45 U.S.C. § 152, First, Section 2, First ...............

45 U.S.C. § 152, Ninth, Section 2, Ninth ............

45 U.S.C. § 184, Section 204 ............-...------1---+-+-

Airline Deregulation Act of 1978, 92 Stat. 1705

(1978) :

49 U.S.C. § 1878 ..........2..........-.cccsnseceeessceenccnneccsnnes

49 U.S.C. § 1551 (a) (7) -..--.----------ce-eeeeeeceeceeseeeeeees

Page

IN THE

Siypreme Court of the United States

OCTOBER TERM, 1986

No. 86-1855

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

Petitioners,

Vv.

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-

FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,

AIRLINE DIVISION, and LOCAL UNION No. 2707, af-

filiated 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

BRIEF FOR TEAMSTER RESPONDENTS

IN OPPOSITION

Respondents, International Brotherhood of Teamsters,

Airline Division (“IBT”) and Teamsters Local 2707 and

2747, respectfully urge denial of the petition for a writ

of certiorari to review the judgment and orders entered

by the United States Court of Appeals for the Ninth

Circuit on March 30 and April 1, 1987.

tana ak

JURISDICTION

The jurisdictional requisites are adequately set forth

in the petition.’

STATUTORY PROVISIONS INVOLVED

Certain provisions of the Railway Labor Act (“RLA”),

45 U.S.C. § 151, et seg., are set forth in the appendix

to the petition (Pet. App. M). Sections 152, First and

204 of the RLA, 45 U.S.C. §§ 152, First, 184, are set

forth in the appendix to this opposition brief. Resp. App.

STATEMENT OF THE CASE

Relevant Facts

On September 1, 1984, IBT and Western Airlines, Inc.

(“Western”) signed a Letter of Agreement, which pro-

vided that in the event of an unfriendly takeover effort,

as determined by the IBT, Western would require the

acquiring carrier to assume the obligations of the IBT

collective bargaining agreements.* Western agreed to this

provision as part of the quid pro quo for employee wage

and work rule concessions which reduced Western’s labor

costs by 20 percent.

On September 9, 1986, Western and Delta Air Lines,

Ine. (“Delta”) entered into an Agreement and Plan of

Merger (‘““Merger Agreement”). The Merger Agreement

did not condition Western’s acquisition on Delta’s assump-

tion of Western’s collective bargaining agreements with

the IBT. On or about October 15, 1986, the IBT notified

Western that the IBT had determined that Western’s

1 References to the petition are designated “Pet.”; references

to the appendix to the petition are designated “Pet. App.”; and

references to the appendix to this opposition brief are designated

“Resp. App.”

2 The Letter of Agreement is reprinted at Resp. App. B.

acquisition by Delta was “unfriendly,” and the Septem-

ber 1, 1984 Letter of Agreement was applicable to the |

transaction. The IBT thus demanded compliance with the

Letter of Agreement, and reiterated its demand by letter

dated October 27, 1986. On October 30, 1986, Western

denied that the Letter of Agreement applied to the Mer-

ger Agreement.

On or about November 6, 1986, the IBT filed class

action grievances with Western on behalf of each craft

or class of employees it represented at Western.* The

grievances alleged that Western had breached the Sep-

tember 1, 1984 Letter of Agreement by failing and refus-

ing to require Delta to assume the IBT collective bar-

gaining agreements as a condition of acquisition. The

relief requested was for the merger not to be effectuated

until Western complied with the terms of the Letter of

Agreement. The IBT asked Western to agree to refer

the grievances directly to the system board of arbitra-

tion, which the IBT and Western established to resolve,

inter alia, disputes arising out of the interpretation or

application of the terms of their bargaining agreements.*

Western denied the IBT’s grievances on November 13,

1986, and also declined to proceed directly to arbitration.

At the Company’s insistence, the grievances were re-

ferred to the Review Board, which constituted the final

step of the grievance procedure before arbitration. The

Review Board was comprised of equal numbers of IBT

and Western representatives. On November 25, 1986, the

8 The IBT represented three crafts or classes at Western: Me-

chanics and Related Employees, Stock Clerks and Flight Instructors.

The three crafts were covered by separate collective bargaining

agreements having virtually identical grievance-arbitration provi-

sions. The Letter of Agreement of September 1, 1984, relating to

successorship, Resp. App. B, was applicable to all IBT-represented

emplovees.

4 The arbitration provisions of the bargaining agreements are set

forth in pertinent part at Resp. App. C.

Review Board considered the IBT’s grievances and dead-

locked. The IBT immediately referred the grievances to

the IBT-Western system board of arbitration, which is

chaired by an impartial arbitrator selected by the parties.

Western, however, refused to arbitrate the grievances.

The Proceedings Below

On December 5, 1986, the IBT instituted an action in

the United States District Court for the Central District

of California to compel Western to arbitrate the IBT’s

grievances. An order enjoining the merger of Western

into Delta pending the outcome of arbitration was also

sought.° Temporary relief was denied. On December 29,

1986, the IBT filed a motion for summary judgment, and

Western and Delta filed a motion to dismiss the com-

plaint, or alternatively for summary judgment. The dis-

trict court denied the IBT’s unopposed motion to ex-

pedite responsive briefing and oral argument. Adhering

to its normal schedule, the lower court took the matter

under submission solely on the papers submitted and

without oral argument. On February 13, 1987, the IBT’s

complaint was dismissed.

The IBT noticed its appeal to the Ninth Circuit Court

of Appeals on February 20, 1987. A motion to expedite

the appeal filed by the IBT on March 2, 1987 was con-

strued by the court of appeals as a motion for an order

compelling arbitration pending appeal. So construed, the

motion was granted on March 17, 1987.* The appeal was

expedited by an order entered on March 20, 1987.7 On

5 So all necessary parties would be before the court, Delta was

made a defendant pursuant to Fed. R. Civ. P. 19.

6 Arbitration commenced on March 30, 1987, before the IBT-

Western system board of adjustment chaired by Robert O. Harris,

formerly Chairman of the National Mediation Board, and was

completed, but for closing arguments, on March 31.

™The appeals court also consolidated the IBT’s appeal with the

appeal filed by the Air Transport Employees (“ATE”). The IBT

and the ATE are collectively referred to hereafter as “the Unions.”

or about March 25, 1987, the IBT moved to enjoin the

scheduled April 1, 1987 merger pending appeal. On

March 27, 1987, Western and Delta filed a consolidated

opposition to the IBT’s motion to enjoin the merger

pending appeal.®

A panel of the appeals court heard oral argument on

March 30, 1987. The following day, the court of appeals

issued an order which reversed the district court, directed

Western to arbitrate the Unions’ grievances, and en-

joined the merger of the carriers “pending completion of

arbitration proceedings. .. .” Pet. App. B-1. On April

1, 1987, the court below issued its opinion (Pet. App.

A-1), which was amended on June 1, 1987 (Resp. App.

E-1).

In concluding that the Unions’ grievances were arbi-

trable minor disputes, the court of appeals reasoned that

the “arbitration is not likely to make a determination

that any union or unions will become the representative

of Delta employees .. .” because “the unions are not seek-

ing a determination that they are the collective bargain-

ing representative of Delta employees ..... 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.” Pet.

App. at A-7. Noting that the Unions’ “action seeks ar-

bitration with Western, not Delta” (Pet. App. at A-7),

the court of appeals “expressly decline[d] to decide

whether the arbitrator can validly order representation

by any union” because “[i]t is the function of the ar-

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

contract and to consider appropriate remedies in the first

8 Also on March 27, Western issued a memorandum to “all em-

ployees” which stated that “we [Western] have put together a

contingency plan that will permit Western to continue to operate

as an independent, wholly-owned subsidiary [of Delta] subsequent

to April 1.” A copy of this memorandum was filed with the court

of appeals on March 30, 1987.

instance.” Pet. App. at A-9. Relying on Bhd. of Loco-

motive Eng’rs Vv. Missouri-K.T. R.R., 363 U.S. 528, 531

(1960), the appeals court considered it appropriate to

“preserve the status quo so that such arbitration may

proceed under the RLA” (Pet. App. at A-9, -10), and

enjoined the merger pending the outcome of arbitration.

The Proceedings Before This Court

On April 1, 1987, Justice-O’Connor, as Circuit Justice

for the Ninth Circuit, granted Western’s and Delta’s

emergency application for stay of the order of the Court

of Appeals for the Ninth Circuit. Pet. App. G-1. On

April 2, 1987, Justice O’Connor issued an amended order

which stayed the ongoing arbitration between the IBT

and Western, and the scheduled arbitration between ATE

and Western. Pet. App. H-1.

REASONS FOR DENYING THE WRIT ®

I. THE DECISION OF THE COURT BELOW, CON-

CLUDING THAT AN ARBITRABLE MINOR DIS-

PUTE EXISTED, FOLLOWS THIS COURT’S ESTAB-

LISHED PRECEDENTS, AND IS CONSISTENT

WITH THE RAILWAY LABOR ACT.

A. Only A System Board Of Adjustment Has Jurisdic-

tion Over Minor Disputes; The Dispute Over The

Successorship Clause Is A Minor Dispute.

In directing Western to arbitrate the IBT’s successor-

ship grievances before the system board of adjustment,

the court below adhered to this Court’s decisions and the

decisions of other courts of appeal. Thus, it has long

been recognized that when a dispute involves the inter-

pretation or application of a collective bargaining agree-

® Although Western was merged into Delta on April 1, 1987, by

- virtue of Justice O’Connor’s stay order, the IBT respectfully sub-

mits that the Court must consider the petition for certiorari in

the same factual context as the court of appeals, i.e., when Western

and Delta were separate operational entities.

ment, § 204 of the RLA, 45 U.S.C. § 184, mandates that

it be referred to an appropriate adjustment board for

resolution through arbitration. Int’l Ass’n of Machinists

v. Central Airlines, Inc., 8372 U.S. 682, 687-89 (19638) ;

Intl Ass’n of Machinists v. Aloha Airlines, 776 F.2d

812, 815 (9th Cir. 1985). See Bhd. of R.R. Trainmen V.

Chicago River & I.R.R., 353 U.S. 30, 38-39 (1957). The

jurisdiction of the adjustment board to resolve these so-

called “minor disputes” is exclusive.° Andrews v. Louis-

ville & N.R.R., 406 U.S. 320, 322-23 (1972) (Rehnquist,

J.); Intl Ass’n of Machinists v. Republic Airlines, Inc.,

761 F.2d 1386, 1390 (9th Cir. 1985).

As the court of appeals recognized, the IBT’s griev-

ances arise under an express term of its collective bar-

gaining agreements with Western, as amended by the

September 1, 1984 Letter of Agreement. The dispute

with Western is entirely over the interpretation or appli-

cation of the Letter of Agreement wherein Western, as a

result of free collective bargaining, voluntarily agreed to

“require the merging . . . or acquiring carrier or other

entity to assume the obligations of the IBT collective

bargaining agreements.” Resp. App. B. The IBT’s griev-

ances were lodged against Western before the mer-

ger, concerned Western’s failure to take premerger ac-

tions required by the Letter of Agreement, and sought to

vindicate employee rights which had accrued prior to the

acquisition and merger. Unquestionably, it was a pre-

merger dispute between Western and its employees over

the meaning or application of contractual terms.

Because the IBT-Western system board has exclusive

jurisdiction over all “disputes or grievances of any em-

ployee or employees or disputes or grievances between the

10 A “minor dispute” is a dispute between the carrier and its

employees over the meaning or application of an existing bargain-

ing agreement’s terms and deals with rights previously accrued.

Elgin, J. & E. R.R. v. Burley, 325 U.S. 711, 723 (1945); Aloha

Airlines, 776 F.2d at 812.

Company and the Union which may arise under the

terms of [the IBT-Western] Agreement .. .” (Resp.

App. C), the court below correctly concluded that a minor

dispute existed. The matter was properly referred to the

system board for resolution.‘ Accord, Teamsters Local

70 v. Western Pacific R.R., 809 F.2d 607 (9th Cir. 1987) ;

Airline Pilots Ass’n v. Texas Int'l Airlines, 567 F. Supp.

66, motion for stay denied, 567 F. Supp. 78 (S.D. Tex.

1983); Ass’n of Flight Attendants v. Republic Airlines,

Inc., 86 C 3164 (N.D. Ill. June 11, 1986) (Resp. App.

D).

Precedent arising under the NLRA” was properly con-

sidered by the court below because the issue of whether

a minor dispute arises from a grievance over a successor-

11 The test applied by the court below in determining whether

the IBT’s grievances constituted a minor dispute—whether the

dispute was “arguably covered” by a contract term—is in accord

with Communications Workers v. AT&T Technologies, 106 S.Ct.

1415 (1986), and the decisions of other circuit courts of appeal.

The Court of Appeals for the Fifth Circuit has employed the same

test as the court below. REA Express, Inc. v. Ry. Clerks, 459 F.2d

226 (5th Cir.), cert. denied, 409 U.S. 892 (1972). Other circuit

courts have found the existence of a minor dispute where the

claim that the contract permits the disputed action is not “obvi-

ously insubstantial,” UTU v. Penn Central Transp. Co., 505 F.2d

542 (3d Cir. 1974); UTU Local 1477 v. Baker, 482 F.2d 228 (6th

Cir. 1973) ; Airline Stewards Ass’n Vv. Caribbean Atlantic Airlines,

Inc., 412 F.2d 289 (1st Cir. 1969); Southern Ry Co. v. Bhd. of

Locomotive Firemen, 384 F.2d 323 (D.C. Cir. 1967); the contract

is “reasonably susceptible” to the interpretation sought, UTU v.

Burlington Northern, Inc., 458 F.2d 354 (8th Cir. 1972); and the

asserted contractual claim is not frivolous, UTU v. Baker, 499 F.2d

727 (7th Cir.), cert. denied, 419 U.S. 839 (1974).

12 Successorship clauses have received the tacit approval of this

Court. Howard Johnson v. Detroit Local Jt. Exec. Bd., 417 U.S.

249, 258 n.38 (1974). In cases arising under the NLRA, successor-

ship clauses have withstood attacks of being unlawful, and have

been deemed to be mandatory subjects of bargaining. Lone Star

Steel Co. v. NLRB, 639 F.2d 545 (10th Cir. 1980), cert. denied,

450 U.S. 911 (1981); Amaz Coal Co. v. NLRB, 614 F.2d 872 (3d

ship clause does not require statutory interpretations that

are unique to the RLA. Bhd. of R.R. Trainmen v. Jack-

sonville Terminal Co., 394 U.S. 369, 383 (1969). See

Textile Workers v. Lincoln Mills of Alabama, 353 U.S.

448, 458-59 (1957). Section 9 of the NLRA was modeled

on §2, Ninth of the RLA. NLRB v. Jones & Laughlin

Steel Corp., 301 U.S. 1, 44-45 (1937). Moreover, “since

the compulsory character of the administrative remedy

provided by the Railway Labor Act for [minor] disputes

. . . Stems not from any contractual undertaking between

the parties but from the Act itself, the case for insisting

on resort to those remedies is if anything stronger in

cases arising under that Act than it is in cases arising

under § 301 of the [Labor-Management Relations Act,

29 U.S.C. § 185].” Louisville & N.R.R., 406 U.S. at 323.

Accordingly, under the RLA, more so than under the

LMRA, “an order to arbitrate the particular grievance

should not be denied unless it may be said with positive

assurance that the arbitration clause is not susceptible

of an interpretation that covers the asserted dispute.

Doubts should be resolved in favor of coverage.” AT&T

Cir. 1980), rev’d in part on other grounds, 453 U.S. 322 (1981).

The courts of appeal have compelled arbitration of successorship

clauses in suits brought under § 301 of the LMRA. See Local Jt.

Exec. Board vy. Royal Center, Inc., 796 F.2d 1159 (9th Cir. 1986),

cert. denied, 55 U.S.L.W. 3468 (Jan. 138, 1987); Int’l Ass’n of

Machinists, Local 1226 v. Panoramic Corp., 668 F.2d 276 (7th Cir.

1981). Findings that employers have breached successorship clauses

substantially identical to the Letter of Agreement have been en-

forced by the courts. See United Mine Workers, District 17 Vv.

Allied Corp., 765 F.2d 412 (4th Cir.) (en banc), cert. denied, 105

S.Ct. 3527 (1985) ; TTL Distribution, Inc. v. Local 99, ILGWU, 551

F. Supp. 649 (S.D.N.Y. 1982), aff'd without opinion, 729 F.2d 1444

(2d Cir. 1983); UMWA v. Eastover Mining Co., 603 F. Supp. 1038

(W.D. Va. 1985). And, arbitration of breaches of such clauses is

common. See Martin Podany Associates, 80 Lab. Arb. (BNA) 658

(1983) (Gallagher, Arb.) ; Sexton’s Steakhouse, Inc., 76 Lab. Arb.

(BNA) 577 (1981) (Ross, Arb.).

18 Compare § 2, Ninth with §9(c) of the original Wagner Act,

49 Stat. 453 (1935).

Technologies, 106 S.Ct. at 1419, quoting Steelworkers v.

Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83

(1960) .%*

B. Arbitration Of A Successorship Clause Does Not

Give Rise To A Representation Dispute, For The

Arbitrator Is Not Called Upon To Determine A

Collective Bargaining Representative Or The Ap-

propriate Craft Or Class Of Employees.

A representation dispute is not implicated by the IBT’s

grievance alleging a breach of the successorship clause

set forth in the 1984 Letter of Agreement. Air Line

Pilots Ass’n v. Texas Int'l Airlines, 567 F. Supp. 66;

Ass’n of Flight Attendants v. Republic Airlines, Inc., 86

C 3164 (Resp. App. D). A representation dispute in-

volves the proper determination of who shall have the

right to represent a given class or craft of employees for

purposes of the RLA by virtue of their majority status.

Texas Int'l Airlines, 567 F. Supp. at 70.

In contrast, a successorship. clause operates “to assure

that successorship would be required before any contract

of sale was made, to assure that signatories to the agree-

ment would pass their obligations on to the purchasers.

. .”’ Eastover Mining Co., 603 F. Supp. at 1044. The

clause affects only the postmerger terms and conditions

of employment of the seller’s employees and does not,

after the merger or sale, extend coverage of the contract

or recognition of the union to any but the seller’s em-

ployees. Amazx Coal, 614 F.2d at 886-87; Eastover Min-

ing, 603 F. Supp. at 1047. See John Wiley & Sons, Inc.

v. Livingston, 376 U.S. 548, 551 n.5 (1964).

14 Delta suggests that its voluntary assumption of LPP’s obviates

the need to comply with the successorship clause. While a dubious

proposition at best, Delta’s LPP’s do not address the issue of who

will represent the employees on the acquired carrier (Western) in

enforcing LPP rights, or even whether such rights are enforceable

at all.

No representation dispute arose by virtue of the IBT’s

grievances because they did not constitute demands on

Delta to recognize the IBT as the representative of any

of its employees. Nor, as the court below stated, were

they demands for recognition against Western. Pet. App.

A-7. The IBT already represented Western’s employees.

Delta suggests that it is appropriate for the judiciary

to “look beyond the superficial form of a complaint to

determine whether . . . it masks a representation dis-

pute.” Pet. at 10-11. But, neither federal nor state courts

have jurisdiction to interpret collective bargaining agree-

ments subject to the RLA, even when it is necessary to

resolve cases otherwise properly before them. Slocum v.

Delaware, L. & W. R.R., 3389 U.S. 289 (1950); Order of

Ry. Conductors v. Pitney, 326 U.S. 561 (1946) ; Switch-

men’s Union of North America v. So. Pacific Co., 398

F.2d 448, 447 (9th Cir. 1968). If the arbitrator can in-

terpret the disputed contract provision in a manner that

would render it lawful, arbitration is to be compelled.

John Wiley & Sons, Inc., 376 U.S. at 555. See W.R. Grace

& Co. v. Local 759, Rubber Workers, 461 U.S. 757, 767-

68 n.10 (1983).

Delta’s arguments against arbitration assume that the

IBT will prevail at arbitration. But, an arbitrator may

15 Thus, even if Delta is correct in its assertions that representa-

tional issues are created by the successorship clauses, arbitration

is not precluded. Carey v. Westinghouse, 375 U.S. 261 (1964).

_ There, it could not be determined whether a grievance raised a

jurisdictional or representational dispute. After considering White-

house V. Illinois Central, 349 U.S. 366 (1955), an RLA case it con-

sidered analogous, the Court held that “[e]ven if it is a repre-

sentation matter, resort to arbitration may have a pervasive, cur-

ative effect ....” 375 U.S. at 272. Should the arbitrator’s decision

exceed the scope of his authority or be inconsistent with federal

policy or law, judicial review is available. W.R. Grace & Co., 461

U.S. at 766.

find no violation of the successorship provision at issue,

thus avoiding the representation issues that Delta and

Western allege might arise. This possible result is in and

of itself a sufficient basis to direct arbitration. See White-

house, 349 U.S. at 373.

Nor would an arbitrator, in order to afford relief to

the IBT, have to step into the “representational area ex-

clusively reserved to the NMB,” as stated by Delta. Pet.

at 10. The arbitrator could: find that Western violated

the Letter of Agreement, and thereby sustain the Union’s

grievance, but he might interpret it as permitting only

monetary damages. See Allied Corp., 765 F.2d 412; TTL

Distribution Inc., 551 F. Supp. 649; Martin Podany Asso-

ciates, 80 Lab. Arb. (BNA) at 663. A damage award

could not implicate a representation issue within the

NMB’s exclusive jurisdiction.

Assuming the arbitrator ruled that the Letter of

Agreement precluded an operational merger until West-

ern caused Delta to agree to assume the labor agreements

with the IBT, the award would be directed to Western

only and would affect only Western’s employees. If, after

the award, Delta had decided not to assume the agree-

ments, the IBT would have continued to represent only

Western’s employees, Western would have continued to

operate separately from Delta, and no representation is-

sue could have existed. See Northwest Airlines, Inc., 13

N.M.B. 399, 401 (1986) (where two carriers’ operations

remain unintegrated, no representation issue arises).

Delta’s decision whether to assume the collective bargain-

ing agreements because of concern over perceived opera-

tional difficulties or inefficiencies is an entrepreneurial

decision for Delta to make, but is “irrelevant to the issue

of arbitrability.” Royal Center, Inc., 796 F.2d at 1164.

See Whitehouse, 349 U.S. at 373.

Assuming Delta decided the benefits of merging West-

ern into its operations outweighed the disadvantages

(from its standpoint) of assuming the IBT-Western

agreements, its assumption of the agreements would have

amounted to no more than a voluntary recognition of the

IBT as the postmerger representative of the employees

represented by the Union at Western. Voluntary recog-

nitions are permissible under the RLA. Virginian Ry. Vv.

System Federation No. 40, 300 U.S. 515, 548 n.6 (1936) ;

Summit Airlines, Inc. v. Teamsters Local 295, 628 F.2d

787, 795 (2d Cir. 1980); Burlington Northern v. ARSA,

503 F.2d 58 (7th Cir), cert. denied, 421 U.S. 975 (1974) ;

Southwest Airlines, 8 N.M.B. 684 (1981). Indeed, the

NMB’s stated policy is one of “noninterference in volun-

tary recognition matters, ‘except where such recognition

would be in derogation of an existing Board certifica-

tion.” TWA/Ozark, 14 N.M.B. 218, 234 (1987), quot-

ing Republic Airlines, Inc., 6 N.M.B. 817 (1979). Since

Delta’s employees were unrepresented, there was no cer-

tification in existence which could be derogated by Delta’s

voluntary recognition of the IBT.

Contrary to Delta’s assertions, the recognition of a

representative for less than all employees who might be

included in a craft or class, does not violate any mandate

contained in the RLA. Pet. 21-22. The NMB “has long

held that carriers and labor organizations are free to

include any employee classifications under a voluntary

recognition agreement... .” Aircal, 14 N.M.B. 33, 42

(1986) ; Galveston Wharves, 4 N.M.B. 200 (1962). Thus,

“li]f the majority of a craft or class has not selected a

representative, the carrier is free to make with anyone

it pleases and for any group it pleases contracts estab-

lishing rates of pay, rules or working conditions” (em-

phasis added). Virginian Ry., 300 U.S. at 548 n.6, quoting

with approval the Governmert’s position. Accord, Bur-

lington Northern, 503 F.2d at 638.1 The parties’ volun-

16 In Burlington Northern, the court of appeals held:

Unless a representation determination is made [by the NMB]

pursuant to that Act, the voluntary agreement by plaintiff to

recognize a collective bargaining representative of a craft or

tary action, of course, would not affect the NMB’s au-

thority to designate a different craft or class for collective

bargaining purposes if its authority is properly invoked

by the filing of an application by an individual or or-

ganization alleging a representation dispute.’’ Delta’s

decision to voluntarily recognize the IBT for a group

which does not comprise a systemwide craft or class

would be permissible.

The NMB’s decision in TWA/Ozark, 14 N.M.B. 218,

and Delta’s subsequent application for an order revoking

the IBT’s certification, do not demonstrate that arbitra-

tion of the successorship clause raises representation is-

sues, or that the court of appeals was without jurisdic-

tion to compel arbitration. The NMB’s TWA/Ozark de-

cision was a response to carrier abuse of the NMB’s so-

called “Republic merger doctrine.”"*® The NMB recog-

nized that:

. carriers have interpreted the Republic case to

give them independent authority to extinguish exist-

ing certifications held by organizations on the ac-

quired carrier; to choose between recognition of or-

ganizations on its property or the acquired carrier;

class that is not system-wide will be given effect. Compare

Switchmen’s Union v. Nat’l Mediation Board, 77 U.S. App. D.C.

264, 135 F.2d 785, 792 (1943), rev’d on other grounds, 320 U.S.

297, 64 S.Ct. 95, 88 L.Ed. 61 (1948). If the contrary were

true, the Merger Protection Agreement, which became effective,

would have become a nullity upon its effective date, and the

representation rights of ARSA would be terminated by the

very agreement that purports to continue them in force.

503 F.2d at 63.

17 See generally, Flight Eng’rs Int'l Ass’n v. NMB, 294 F.2d

905, 908 (D.C. Cir. 1961), cert. denied, 368 U.S. 956 (1962. (stat-

ing, “It has become well settled that in making ‘craft or class’ deter-

minations, the NMB may regroup, amalgamate, or splinter ‘his-

toric’ bargaining groups, taking into account technological and

functional changes . . .’’).

18 Republic Airlines, 8 N.M.B. 49 (1980).

‘

and to choose whether or not employees on the ac-

quired carrier will be represented.

14 N.M.B. at 233.

It held that only the NMB could revoke a labor organ-

ization’s certification. Carriers can invoke the NMB’s

services merely for the limited purpose of obtaining a

determination of whether the Board should revoke a cer-

tification. Jd. at 241-42.

Delta’s application before the NMB cannot resolve the

issue before this Court. The instant successorship issue

must first be resolved for Delta’s application to be ripe

for resolution by the NMB. The NMB’s decision whether

to revoke a union’s certification after a merger is fact

based." 7WA/Ozark, 14 N.M.B. at 236; Northwest Air-

lines, 18 N.M.B. at 400. Where, as here, there exists

an issue of contractual successorship rights, the NMB

cannot revoke a union’s certification without the prior

resolution of the successorship issue, for this is tanta-

mount to the Board’s resolving the minor dispute on the

merits. The NMB has no authority to enforce the suc-

cessorship clause or determine its validity. Pan American

World Airways, Inc., 7 N.M.B. 225-26 (1979).% Ar-

bitration of the successorship clause could result, inter

alia, in the voluntary recognition of the IBT by Delta

as the representative of former Western employees. A

decision to revoke the IBT’s certification prior to an

arbitral resolution would interfere with a matter of vol-

untary recognition, which the NMB will not do, TWA/

19 A merger does not automatically cause a union’s certification

to terminate, contrary to Delta’s assertion. Pet. at 9-10. TWA/

Ozark, 14 N.M.B. at 235. TWA’s flight attendants comprised over

90 percent of the postmerger class or craft, but TWA also volun-

tarily continued to recognize and treat with the Association of

Flight Attendants, which represented Ozark’s attendants. For this

reason, the NMB determined that AFA’s certification continued

after the merger. Accordingly, TWA had two unions represent-

ing its flight attendants. TWA/Ozark, 14 N.M.B. at 238-40.

20 See NLRB v. American Nat’l Ins. Co., 8343 U.S. 395 (1952).

Ozark, 14 N.M.B. at 234, as well as preclude arbitration

from running its full course.

No issue of representation is before the NMB. A

carrier cannot invoke the NMB’s procedures to initiate

“employee voting.” Pet. at 23. Section 2, Ninth of the

RLA, 45 U.S.C. § 152, Ninth, restricts the NMB’s au-

thority to investigating representation disputes among

employees, not disputes between the carrier and its em-

ployees. Bhd. of Ry. Clerks vy. Ass’n of Non-Contract

Employees, 380 U.S. 650, 666-67 (1965); Int’l Ass’n of.

Machinists v. Alitalia Airlines, 600 F. Supp. 268, 275

(S.D.N.Y. 1984), aff'd, 753 F.2d 3 (2d Cir. 1985). Nor

may the NMB commence a representation investigation

sua sponte. Alitalia Airlines, 600 F. Supp. at 275.

Il. NO OTHER CIRCUIT COURT OF APPEALS HAS

DECIDED WHETHER A DISPUTE ARISING UN-

DER A SUCCESSORSHIP CLAUSE IN AN RLA

AGREEMENT IS ARBITRABLE, AND THERE-

FORE AN INTER-CIRCUIT CONFLICT CANNOT

EXIST.

The Ninth Circuit Court of Appeals is the only court

of appeals to decide the issue of whether a grievance over

a successorship clause gives rise to an arbitrable minor

dispute. Hence, the decision below does not conflict with

rulings of any other Circuit Court of Appeals. No order

declaring that the IBT was the appropriate bargaining

representative of Delta’s employees was sought or granted.

The court of appeals did not direct the arbitrator to issue

such an award; nor did it contemplate the issuance of

such an award. Its order compelling arbitration pre-

supposed no finding on the merits in accordance with

this Court’s longstanding precedents. AT&T Technolo-

gies, 106 S.Ct. at 1419; Slocum, 339 U.S. 239.

Air Line Employees Ass’n (“ALEA”) v. Republic Air-

lines, Inc., 798 F.2d 967 (7th Cir.), cert. denied, 107

S.Ct. 458 (1986), upon which Delta and Western pri-

marily rely, was an attempt by ALEA to obtain a ju-

dicial declaration that rival unions prospectively recog-

nized by Northwest Airlines, the carrier “surviving” the

merger with Republic, were not the lawful representa-

tives of employees. Northwest recognized two unions as

the representatives of its postmerger ground employee

complement, thereby supplanting ALEA, which was the

premerger representative of Republic’s ground employ-

ees. ALEA challenged Northwest’s actions, with which

it had no contract, and, in doing so, called into question

the identity of the appropriate representative of the

ground employees. 798 F.2d at 968. Thus, ALEA’s com-

plaint inter alia, sought a declaration that Northwest

had a duty to bargain with it “as the representative of

the majority in the class or craft involved.” 798 F.2d

at 968.

In order to grant ALEA relief, including an order

compelling Northwest to arbitrate the grievance filed

over the recognition, the district court would have had

to determine whether ALEA or the unions recognized by

Northwest represented the postmerger employee comple-

ment. That determination, the court of appeals held, is

reserved exclusively for the NMB under § 2, Ninth of

the Act. As the court below stated in distinguishing the

case, “[t]he court properly treated the case essentially

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. ...” Pet. App. at A-8.

In contrast, the IBT has not filed a grievance against

Delta, and made no demand, in either its grievance or its

complaint, that the IBT be recognized by Delta as the

postmerger representative of Delta’s employees. Nor has

Delta recognized a union as the representative of the

postmerger employees formerly represented by the IBT

at Western. Rather, the IBT has challenged Western’s

breach of the Letter of Agreement, which gives rise to

a minor dispute, by invoking its arbitral remedies against

Western as the court below found.

Similarly, in Int’l Bhd. of Teamsters v. Texas Int'l

Airlines, Inc., 717 F.2d 157 (5th Cir. 1983), the union

sought a declaratory judgment that its collective bar-

gaining agreement with Texas International remained

in force by operation of law after Texas International

was merged into the larger Continental Airlines. The

union’s claim was not predicated on a _ successorship

clause or any other contract provision. Unlike the in-

stant case, no minor dispute was involved. 717 F.2d at

163-64. The distinction is of decisional significance. See

Air Line Pilots Ass’n v. Texas Int’l Airlines, 567 F. Supp.

66.

Bhd. of Ry. and S.S. Clerks v. United Airlines, Inc.,

325 F.2d 576 (6th Cir. 1963), cert. dismissed, 379 U.S.

26 (1964), is very similar to Republic Airlines. In

United, unlike here, the representative of employees on

Capital (the carrier that was merged into United) sued

the surviving carrier, United, in an attempt to enforce

the successorship clause of the Capital agreement. Thus,

the union sought to require United to recognize the union

as the representative of its employees, 325 F.2d at 577,

and thereby have the Court settle the question of rep-

resentation between rival unions brought about by the

merger. Here, the IBT is attempting only to enforce its

agreements with Western against Western. Delta’s em-

ployees are in no way implicated.

Analysis of the two First Circuit Court of Appeals’

decisions arising out of the Delta-Northeast Airlines

merger establishes that they are in harmony with the

decision below. In Int’l Ass’n of Machinists v. Northeast

Airlines, Inc., 473 F.2d 549 (1st Cir.), cert. denied, 409

U.S. 845 (1972), the union brought suit against North-

east to obtain an order compelling Northeast to bargain

with it over postmerger employee rights. It relied upon

a contract provision which required that “[i]n case of a

consolidation or merger, representatives of the Company

and the Union will meet without delay and negotiate

for proper provisions for the protection of empioyees’

seniority and other rights.” Jd. at 551. The appeals

court found that a bargaining order based on the con-

tract provision was not appropriate because the failure to

bargain was a breach of contract, which generated an

arbitrable minor dispute within the exclusive jurisdic-

tion of the system board of adjustment. Jd. at 554.4

The court of appeals declined to state whether Delta

might be required to bargain with the union over post-

merger changes in working conditions. Jd. at 560 n.17.

In the subsequent case, Int’l Ass’n of Machinists v.

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

denied, 429 U.S. 961 (1976), relied upon by Delta, the union

amended its complaint to seek an order compelling Delta

to negotiate with it over seniority integration. Noting

that the union was not the certified representative of

Delta’s employees, the appeals court would not compel

Delta to bargain. To enter a bargaining order, it recog-

nized, a determination that the union represented Delta’s

employees must first be made. But, the court of appeals

also suggested that an order compelling Delta to arbi-

trate would be appropriate if there were grievance pro-

*1 The appeals court found no independent statutory duty under

the RLA to compel Northeast to negotiate. In large part, this con-

clusion rested upon the Civil Aeronautics Board (“CAB”) having

been vested with exclusive authority to approve mergers and their

terms. The CAB required the carriers to afford employee groups

the right to negotiate seniority integration after the merger, which

the court stated removed the issue from “the procedures of the

RLA.” Id. at 559-60. The CAB ceased to exist in December 1984,

and the Department of Transportation (“DOT”) assumed-the au-

thority to consider whether a merger is in the public interest. 49

U.S.C. § 1551(a) (7). DOT has uniformly refused to impose labor

protective provisions on merging carriers, expressly leaving labor

protection to collective bargaining. See Delta-Western Acquisition

Case, DOT Order 86-12-80 (Dec. 11, 1986).

ceedings at Northeast outstanding, or Delta “refused to

submit to a System Board of Adjustment resolution of

particular disputes concerning the survival of rights un-

der the Northeast collective bargaining agreements.” /d.

at 977-78.

Other cases relied upon by Delta are easily distin-

guished. In Flight Eng’rs Int'l Ass’n v. Eastern Air

Lines, Inc., 311 F.2d 745 (2d Cir.), cert. denied, 373

U.S. 924 (1963), the union sought to compel the carrier

to recognize and bargain with it after the NMB had

conducted an election and certified a rival union as bar-

gaining representative for certain employees. Air Line

Pilots Ass’n v. Texas Int'l Airlines, Inc., 656 F.2d 16

(2d Cir. 1981), involved an attempt to have a court

declare a union the representative of a new carrier’s

employees, and to compel the carrier to bargain with it.

Order of R.R. Telegraphers, Division 14 v. Leighty, 298

F.2d 17 (4th Cir.), cert. denied, 369 U.S. 885 (1962),

involved an intraunion dispute over who had the right to

represent employees, the local union or its parent inter-

national union. Again, the disputes sought judicial reso-

lution of the appropriate bargaining representative.

Delta also relies upon a summary order of the Court

of Appeals for the District of Columbia, which denied

a motion by the Association of Flight Attendants for an

emergency motion to compel arbitration, as an indica-

tion that “the District of Columbia Circuit is likely to

follow other circuits which have concluded that the NMB

has exclusive jurisdiction.” Pet. at 25. Considering that

the order was issued without an opinion, Pet. App. J-1,

in a factually dissimilar case,” it scarcely supports

Delta’s contention that review by this Court is warranted.

22 The decision of the district court in Ass’n of Flight Attendants

(“AFA”) v. Western Air Lines, Inc., No. 87-0040 (D.D.C. Feb. 20,

1987) (Pet. App. K-1), does not lend support to Delta’s cause.

Although the decision also involved a successorship clause, AFA

Ill. THE DUTY TO ARBITRATE SUCCESSORSHIP

CLAUSES PRESENTS NO ISSUE DETRIMENTAL

TO THE AIR AND RAIL TRANSPORTATION IN-

DUSTRIES.

Delta’s primary basis for asserting an important ques-

tion of federal law warranting review by the Court is

that an air or rail carrier may be required to arbitrate

successorship disputes with some of its unions but not all.

That is an illusory issue. A carrier might have to arbi-

trate with the Teamsters but not the Flight Attendants;

however, fragmentation of its work force will not result.

The unions have separate contracts and discrete claims.

Arbitration of a dispute does not cause irreparable harm

to a carrier, as Delta seemingly pleads. Whitehouse, 349

U.S. at 373; Graphic Communications Union v. Chicago

Tribune Co., 779 F.2d 18, 15 (7th Cir. 1985). Rather,

arbitration before a system board of adjustment was es-

tablished by Congress as the machinery “[t]o avoid any

interruption to commerce or to the operation of any

carrier engaged therein . . .” and it is “the duty of all

carriers, their officers, agents, and employees to exert

every reasonable effort . . . to settle all disputes, whether

arising out of the application of such agreements or

otherwise, in order to avoid any interruption to com-

merce.” Central Airlines, 372 U.S. at 689, quoting § 2,

45 U.S.C. § 15la and § 2, First, 45 U.S.C. § 152, First.

Delta further asserts that “disruption” to the airline

industry may result from arbitration, and that this “dis-

ruption” “is of national concern.” The DOT, however,

in considering whether LPP’s should be imposed on a

carriei hos repeatedly stated that even a strike by the

carrier’s employees in a merger situation “will not dis-

apparently intended to seek an order from an arbitrator binding

Delta to its bargaining agreements with Western, or to otherwise

require Delta to take some unspecified action. Pet. App. at K-6.

The IBT, however, sought an order directed only against Western.

rupt the transportation system” because “[w]ith deregu-

lation, other carriers can move quickly to fill gaps in

service.” Midway-Air Florida Acquisition Case, DOT

Order 85-6-33 at slip op. p. 6 (June 14, 1985). See Delta-

Western Acquisition Case, DOT Order 86-12-30 (Dec. 11,

1986). This view has met with judicial approval. Air

Line Pilots Ass’n v. DOT, 791 F.2d 172 (D.C. Cir. 1986) ;

Ind. Union of Flight Attendants v. DOT, 803 F.2d 1029

(9th Cir. 1986). If DOT, the agency charged with deter-

mining if a merger is in the “public interest,” 49 U.S.C.

§ 13878, does not view a strike as disruptive to the national

transportation system, and thus contrary to the public

interest, arbitration is clearly not going to cause devas-

tating disruption to the national transportation system.

DOT has also held that labor protective provisions

should be obtained through free collective bargaining.

Delta-Western Acquisition Case, DOT Order 86-12-30

(Dec. 11, 1986). The IBT and Western negotiated, as

DOT has suggested, a labor protective provision in the

form of a successorship clause. It creates a guarantee of

the continuation of all the employees’ terms and con-

ditions of employment, including access to and representa-

tion before a system board for resolution of, inter alia,

disciplinary matters and disputes over all working con-

ditions. No voluntarily assumed LPP confers this right.

If carriers view successorship provisions as onerous or

unlawful, they should not enter into them. That is the

carriers’ remedy, not judicial intrusion into the substance

of private collective bargaining. See UMWA Health &

Retirement Funds v. Robinson, 455 U.S. 562, 576 (1982).

_No important question of federal law warranting reso-

lution by this Court arises from the decision below.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

ROLAND P. WILDER, JR.

Counsel of Record

WILLIAM LURYE

BAPTISTE & WILDER, P.C.

1919 Pennsylvania Avenue, N.W.

Suite 505

Washington, D.C. 20006

(202) 223-0723

WILMA B. LIEBMAN

25 Louisiana Avenue, N.W.

Washington, D.C. 20001

(202) 624-7464

Attorneys for

Teamster Respondents

APPENDICES

Sy tty 4 4 LO tha Me

bo OR Ts, SRR,

A-t

APPENDIX A

STATUTORY MATERIAL

Set forth below are Section 2, First and Section 204

of the Railway Labor Act, 45 U.S.C. §§ 152, First and

184.

Section 2, First of the Act states:

First. It shall be the duty of all carriers, their

officers, agents, and employees to exert every reason-

able effort to make and maintain agreements con-

cerning rates of pay, rules, and working conditions,

and to settle all disputes, whether arising out of the

application of such agreements or otherwise, in order

to avoid any interruption to commerce or to the

operation of any carrier growing out of any dispute

between the carrier and the employees thereof.

Section 204 of the Act states:

The disputes between an employee or group of em-

ployees and a carrier or carriers by air growing out of

grievances, or out of the interpretation or application of

agreements concerning rates of pay, rules, or working

conditions, including cases pending and unadjusted on

April 10, 1936 before the National Labor Relations

Board, shall be handled in the usual manner up to and

including the chief operating officer of the carrier desig-

nated to handle such disputes; but, failing to reach an

adjustment in this manner, the disputes may be referred

by petition of the parties or by either party to an appro-

priate adjustment board, as hereinafter provided, with a

full statement of the facts and supporting data bearing

upon the disputes.

It shall be the duty of every carrier and of its em-

ployees, acting through their representatives, selected in

accordance with the provisions of this subchapter, to

establish a board of adjustment of jurisdiction not ex-

ceeding the jurisdiction which may be lawfully exercised

A-2

by system, group, or regional boards of adjustment, under

the authority of section 153 of this title. ~

Such boards of adjustment may be established by

agreement between employees and carriers either on any

individual carrier, or system, or group of carriers by air

and any class or classes of its or their employees; or

pending the establishment of a permanent National Board

of Adjustment as hereinafter provided. Nothing in this

chapter shall prevent said carriers by air, or any class or

classes of their employees, both acting through their rep-

resentatives selected in accordance with provisions of this

subchapter, from mutually agreeing to the establishment

of a National Board of Adjustment of temporary dura-

tion and of similarly limited jurisdiction.

The portions of the Labor-Management Relations Act,

as amended, analagously involved in this case are Section

301, 29 U.S.C. § 185.

Section 301 states:

(a) Suits for violation of contracts between an

employer and a labor organization representing em-

ployes in an industry affecting commerce as defined

in this chapter, or between any such labor organiza-

tions, may be brought in any district court of the

United States having jurisdiction of the parties,

without respect to the amount in controversy or

without regard to the citizenship of the parties.

(b) Any labor organization which represents em-

ployees in an industry affecting commerce as defined

in this chapter and any employer whose activities

affect commerce as defined in this chapter shall be

bound by the acts of its agents. Any such labor or-

ganization may sue or be sued as an entity and in

behalf of the employees whom it represents in the

courts of the United States. Any money judgment

against a labor organization in a district court of

the United States shall be enforceable only against

we A a ill EST,

A-3

the organization as an entity and against its assets,

and shall not be enforceable against any individual

member or his assets.

by or against labor organizations in the district

courts of the United States, district courts shall be

deemed to have jurisdiction of a labor organization

(1) in the district in which such organization main-

tains its principal office, or (2) in any district in

which its duly authorized officers or agents are en-

gaged in representing or acting for employee mem-

bers.

(d) The service of summons, subpena, or other

legal process of any court of the United States upon

an officer or agent of a labor organization, in his

capacity as such, shall constitute service upon the

labor organization.

(e) For the purposes of this section, in determin-

ing whether any person is acting as an “agent” of

another person so as to make such other person re-

sponsible for his acts, the question of whether the

specific acts performed were actually authorized or

subsequently ratified shall not be controlling. June

23, 1947, c. 120, Title III, § 301, 61 Stat. 156.

B-1

APPENDIX B

SEPTEMBER 1, 1984

LETTER OF AGREEMENT

The September 1, 1984 Letter of Agreement between

Western and the IBT states:

It is mutually agreed and understood between Western

Airlines, Inc. and the International Brotherhood of Team-

sters as follows:

In the event of an unfriendly takeover effort, as deter-

mined by the International Brotherhood of Teamsters,

Western Airlines shall require the merging, consolidat-

ing, or acquiring carrier or other entity to assume the

obligations of the IBT collective bargaining agreements.

Notice of the existence of this Agreement shall be given

any airline or other entity involved in a merger, con-

solidation, or acquisition with or of Western Airlines.

Such notice shall be in writing with a copy to the Team-

sters Airline Division. Western Airlines shall be liable

to the Teamsters Airline Division and to the covered

employees for all damages sustained as a result of such

failure to require assumption of the terms of this Agree-

ment, and the IBT collective bargaining agreements.

Sete eee eee

C-1

APPENDIX C

The arbitration provisions of the three IBT-Western

collective bargaining agreements state in pertinent part:

BOARD OF ARBITRATION

(A) There is hereby established a Board of Arbitra-

tion, hereinafter called the Board, for the purpose of

adjusting disputes or grievances of any employee or em-

ployees or disputes or grievances between the Company

and the Union which may arise under the terms of this

Agreement and which are properly submitted to it after

all steps for settling disputes or grievances, as set forth

in Article XV, have been exhausted, provided they are

appealed within ten (10) days after last step decision of

grievance procedure has been received, and provided that

in grievance cases covered under Article XV(C), the

Union may extend the time an additional ten (10) days

by advising the Company in writing within the original

ten-day appeal period.

(B) The Board of Arbitration shall, in part, consist

of one (1) member selected by the Union and one (1)

selected by the Company. They shall serve until their

successors are appointed.

appealed to the Board, the Company and Union members

of the Board will, upon the request of either party, meet

and attempt to select a third member. In case of dis-

charge, such meeting will take place within ten (10)

days of the date the case is appealed to the Board. In

the event that the parties are unable to agree upon the

third member within five (5) days, the parties will jointly

request the Federal Mediation and Conciliation Service to

provide a list of five (5) neutrals. The parties shall select

one (1) neutral by alternately striking names from the

list of five (5) neutrals. The order of striking shall be

determined by lot for the first case in which a neutral.

C-2

member is chosen under the provisions hereof and in sub-

sequent cases, the parties shall alternate taking the first

strike.

(D) Such Board of Arbitration shall hear and deter-

mine the dispute or controversy as promptly as possible

and in all events within thirty (30) days and shall issue

a finding and award a decision in writing. The decision

of the majority of the Arbitration Board shall be final,

binding and conclusive to the parties thereto. Such deci-

sion shall be within the scope and terms of this Agree-

ment but shall not change any of its terms or conditions.

The Board shall answer the question or questions sub-

mitted to it. All Arbitration Board hearings will be held

at the place of dispute, unless mutually agreed elsewhere.

D-1

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

No. 86 C 3164

ASSOCIATION OF FLIGHT ATTENDANTS, AFL-CIO,

Plaintiff,

Vv.

REPUBLIC AIRLINES, INC.,

Defendant.

NORTHWEST AIRLINES, INC.,

Defendant-Intervenor.

BENCH OPINION

Plaintiff is the Association of Flight Attendants, a

labor organization which represents the flight attendants

employed by defendant Republic Airlines, Inc. Republic

Airlines, Inc. is a common carrier by air engaged in in-

terstate commerce within the meaning of Section 201

of the Railway Labor Act, 45 U.S.C. § 151, et seg. Re-

public employs approximately 2,400 flight attendants rep-

resented by AFA. Labor relations between the parties

are governed by the Railway Labor Act.

At all times material to this case, Republic and AFA

have been parties to a collective bargaining agreement,

the Agreement of 1984, which is attached to the plead-

ings and made a part of the record in this case. This

Agreement states, among other things, that the Company

D-2

shall provide the Association with provisions of any

legally binding contract for a merger. The description

of the possible merger or other transfer of assets or ac-

quisitions or consolidations is set forth in Section 1.D.

The Agreement further provides in Section 1.E. that in

the event of a merger, acquisition, consolidation or pur-

chase, the Company will provide labor protective pro-

visions for the Republic flight attendants no less favor-

able than the labor protective provisions specified by the

Civil Aeronautics Board in the Allegheny-Mohawk

merger.

The Agreement is in full force and effect and provides

in other sections, particularly Section 25.A, for a System

Board of Adjustment which shall be known as the Re-

public Airlines Flight Attendant System Board of Adjust-

ment. That Board has been created and it has jurisdic-

tion over what are referred to by the parties and in the

cases as minor disputes, that is to say, disputes concern-

ing compliance with the contract provisions, among other

things.

Section 25.E. specifically states that the Board shall

consider any disputes properly submitted to it by the

President of the Union or by designated representatives

when such dispute has not been previously settled in ac-

cordance with the terms provided in the flight attend-

ants’ Agreement.

Exhibit A to the Complaint is a copy of the Allegheny-

Mohawk labor protective provisions incorporated by ref-

erence into Section 1.E. of the Agreement quoted above.

On January 23, 1986, Republic and Northwest, Inc.

entered into an agreement and plan of merger. Exhibit -

B to the Complaint is a copy of the merger agreement.

Republic contends that Section 1.1 of the merger agree-

ment constitutes its compliance with the requirements

of the Agreement with the flight attendants to bind any

successor to the terms and provisions of the labor agree-

D-3

ment between AFA and Republic. AFA contends that

at all material times Republic has refused to carry out

its obligations under Sections 1.D. and 1.E. of the Agree-

ment.

On February 27, 1986, AFA filed a grievance over

Republic’s failure under Section 1.D. to bind Northwest

to the Agreement and to provide AFA with the terms of

the transaction between the carriers carrying out that-

obligation and under Section 1.E. to provide Allegheny-

Mohawk labor protective provisions to the Republic flight

attendants. Exhibit F to the Complaint is a copy of the

grievance.

On February 27, 1986, AFA submitted this dispute

to the Republic flight attendants Board of Adjustment

for arbitration and requested that Republic arbitrate the

dispute on the expedited basis. Exhibit G is a copy of

this submission to the Board.

On March 20, 1986, Republic formally denied the

grievance. On March 26, 1986, AFA resubmitted the

grievance to the System Board. Republic has taken the

position that there is no matter to be submitted to the

System Board for arbitration and contends that, among

other things, it has complied with the obligations of its

labor agreement with the flight attendants, and AFA

denies that.

At this point in time, even though there is a merger

agreement in effect between Northwest and Republic,

Republic continues to be an independent organization

bound by its labor agreement with AFA. This dispute is

a matter which is properly submitted to the System

Board of Adjustment for a determination as to whether

or not Republic has literally complied or actually com-

plied with the terms of the Agreement. This is a matter

subject to the jurisdiction of the System Board and

clearly not a matter for determination by this Court.

D-4

This controversy does not, of course, entirely end

with this conclusion either factually or legally because

Republic contends that intertwined with the issue of con-

tract compliance is the issue of representation and what

will occur after the impending merger, assuming now for

the purposes of this analysis that the merger will be

approved as proposed by Republic and Northwest. In

spite of the able representation of counsel, I do not be-

lieve that there is at the present time a question of rep-

resentation after the merger before the court. The only

question properly presented by the Complaint and in dis-

pute is one of whether or not the action of Republic,

not of Northwest, but of Republic, has been in compli-

ance with the labor agreement between the Association

and Republic Airlines. The court should not and need

not reach out and consider whether or not the ordering

of arbitration will somehow impact the representation of

all of the flight attendants after the merger. That is not

before me and as the parties so eloquently point out, it

is not a matter for the courts in any event. It is perhaps

a major dispute and one which is reserved for the Na-

tional Mediation Board.

No support exists for defendants’ argument that ar-

bitration should be denied if this court believes AFA’s

grievance is without merit. As the Supreme Court re-

cently stated:

The third principle derived from our prior cases is

that, in deciding whether the parties have agreed

to submit a particular grievance to arbitration, a

court is not to rule on the potential merits of the

underlying claims. Whether “arguable” or not, in-

deed even if it appears to the court to be frivolous,

the union’s claim that the employer has violated the

collective-bargaining agreement is to be decided, not

by the court asked to order arbitration, but as the

parties have agreed, by the arbitrator.

we elo aii NES Set it

D-5

AT&T Technologies, Inc. v. Communications Workers of

America, 106 S.Ct. 1415, 1419 (1986). Therefore, this

court has no power to review the merits of AFA’s griev-

ance to see if it is substantial enough to “justify” ar-

bitration.

The cases cited by defendants are clearly distinguish-

able. Most involved the very different issue of whether

a dispute is “major” or “minor,” a distinction of critical

importance in determining such things as the proper

forum and whether a court can issue an injunction to

preserve the status quo. That distinction can depend

on “whether the contention that the contract permits the

disputed action is not obviously insubstantial.” Air Line

Pilots Ass’n v. Northwest Airlines, 444 F. Supp. 840-41

(D.Minn. 1977), aff'd, 570 F.2d 257 (8th Cir. 1978).

See also Local Lodge No. 1266, IAM v. Panoramic Corp.,

668 F.2d 265, 284-85 (7th Cir. 1981) (injunction should

issue when “the position [the union] will espouse in ar-

bitration is sufficiently sound to prevent the arbitration

from being a futile endeavor”). These cases cannot jus-

tify a judicial determination of the merits to decide

whether arbitration should be ordered at all. The other

cases cited involve attempts by a union to enforce its

bargaining agreement after a merger. Since any court

action after merger would in effect be a finding that the

requesting union is the proper representative, some courts

say that would conflict with the National Mediation

Board’s exclusive jurisdiction over representation dis-

putes so a court should refrain from deciding such cases.

See International Brotherhood of Teamsters v. Interna-

tional Airlines, Inc., 717 F.2d 157, 161-62 (5th Cir.

1983). This case, however, presents a pre-merger dis-

pute. AFA is still the representative of Republic’s em-

ployees, so ordering arbitration will not resolve a rep-

resentation dispute.

Accordingly, based upon my determination that the

material facts with relation to the issue of a dispute

D-6

under the contract between and only between AFA and

Republic are not in dispute, I do therefore order that

summary judgment be granted and that an order be pre-

pared, based upon the oral statement that I have made

directing that Republic submit on an expedited basis to

the jurisdiction of the System Board of Adjustment to

resolve, by issuance of a final and binding award, the

parties’ dispute over Republic’s asserted violations of

Section 1.D. and 1.E. of the Agreement. This is the

limited relief I grant and the plaintiff will draw an

order which so states.

The question of retaining jurisdiction is open. I am

not certain it is necessary to retain jurisdiction at this

point in time. I want this to be a final order because

I realize that either side may want to go to the Court of

Appeals. Therefore, I will grant only limited relief. If

you think further relief is or should have been granted,

you can take that up in the Court of Appeals. My judg-

ment at this point in time is that the Court should grant

only such relief as is absolutely necessary to let the par-

ties go forward with expedited arbitration on the limited

issues of contract compliance. That will be the order, so

please draw it and present it to me.

ENTER:

/s/ William T. Hart

United States District Judge

Dated: June 11, 1986

E-1

APPENDIX E

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Nos. 87-5657 /5667

D.C. Nos. CV-86-7921-J MI

CV-86-8032

(Central California)

IBTCWHA, LocAL UNION No. 2702,

Plaintiff-A ppellant,

Vv.

WESTERN AIR LINES, INC.. et al.,

Defend..1s-A ppellees.

AIR TRANSPORT EMPLOYEES,

Plaintiff-A ppellant,

Vv.

WESTERN AIR LINES, INC.,

Defendant-A ppellee.

ORDER

Before: GOODWIN, SCHROEDER, and POOLE, Cir-

cuit Judges.

The court’s opinion in this case filed April 1, 1987 is

amended as follows: the phrase beginning on page 11,

line 4, of the slip opinion is changed to read “with the

merger imminent and one party to the arbitration about

to cease its independent existence, both parties assert

that the district court will lose jurisdiction to enter an

effective arbitration order if the merger takes place as

presently planned.”

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.