Opposition Brief — Air Line Employees Ass'n, International v. Republic Airlines, Inc.

Supreme Court, U.S.

wa SS D

1986

IN THE “OSEPH F. SPANIOL, JR.

Supreme Court of the United States oer

OCTOBER TERM, 1986

ia | f

AIR LINE EMPLOYEES ASSOCIATION, INTERNATIONAL,

" Petitioner,

REPUBLIC AIRLINES, INC., NORTHWEST AIRLINES, INC.,

NWA, INC., BROTHERHOOD OF RAILWAY AND AIRLINE

CLERKS, and INTERNATIONAL ASSOCIATION OF MACHIN-

ISTS AND AEROSPACE WORKERS,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

JOHN J. GALLAGHER, P.C.

Counsel of Record

CHARLES L. WARREN

JAMES E. CONWAY

MARGARET H. SPURLIN

1333 New Hampshire Ave., N.W.

Suite 400

Washington, D.C. 20036

(202) 887-4000

Counsel for Respondents

Of Counsel: Republic Airlines, Inc.,

AKIN, GuMP, STRAUSS, Northwest Airlines, Inc.,

1333 New Hampshire Ave., N.W.

Suite 400

Washington, D.C. 20036

(202) 887-4000

October 24, 1986

WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001 ‘io

RULE 28.1 LIST

Respondent NWA, Ine. is the parent corporation of re-

spondents Northwest Airlines, Inc. and Republic Airlines,

Inc. NWA, Ince. is also the parent corporation of North-

west Aircraft, Inc., Mainline Travel, Inc. and Northwest

Aerospace Training Corp. Respondent Northwest Air-

lines, Ine. is the parent corporation of Montana Enter-

prises, Inc., Affiliated Enterprises, Inc., Compass 315 Ltd.,

Tomisato Shoji, and Gatwick Handling Ltd. Respondent

Republic Airlines, Inc. is the parent corporation of Re-

public Energy Corporation.

(i)

TABLE OF CONTENTS

ei aiindedchonenivnvascnteminehastoxniseacensecnsesense>

ey py gy |: ce

COUNTERSTATEMENT OF THE CASE ...................

REASONS WHY THE PETITION SHOULD BE

DENIED

I. The Seventh Circuit’s Determination That The

District Court Did Not Have Jurisdiction To Re-

quire Northwest To Recognize And Bargain

With ALEA Following The Republic-Northwest

Merger Neither Raises An Important Issue Re-

quiring This Court’s Attention Nor Conflicts

With Decisions Of This Court Or Other Courts

aa ins canessecesbehsinbiniavdnnasayeswoininnbons

A. The Ruling That ALEA’s Complaint Raised

A Representation Dispute Within The Exclu-

sive Jurisdiction Of The National Mediation

Board Does Not Merit Review By This

os id Raa RRS EL A ee

3.

The Court Below Correctly Determined

That ALEA’s Complaint Raised A Repre-

ee

Courts Have Consistently Recognized

That Injunctions To Preserve The Repre-

sentational Status Of A Union F llowing

A Merger Would Impermissibly Interfere

With The NMB’s Jurisdiction -...................

NMB Procedures Provide The Means By

Which A Union May Seek To Preserve Its

Representative Status .............000...0.000022.....-

B. The Decision Below Is Not Inconsistent With

Decisions Of This Court Upholding Federal

Jurisdiction To Enforce The Railway Labor

Act

11

15

eT

iv

TABLE OF CONTENTS—Continued

Page

II. Northwest’s Recognition of BRAC And IAM As

The Post-Merger Representatives Of The For-

mer Republic Employees Did Not Violate The

Railway Labor Act ..................... dhl cindaitnistabeleebtiaind ee 20

NE SIMI” dle ctitnisaciin in tah ccdaceglsbdensssasiniadelipaecmnehen an odeciounbtoaiens 24

Vv

TABLE OF AUTHORITIES

CASES: Page

Adams v. Federal Express Corp., 547 F.2d 319 (6th

Cir. 1976), cert. denied, 431 U.S. 915 (1977)...... 13

Aircraft Mechanics Fraternal Association v. United

Airlines, Inc., 406 F. Supp. 492 (N.D. Cal. 1976).. 19, 21

Air Line Employees Association v. Civil Aeronau-

tics Board, 413 F.2d 1092 (D.C. Cir. 1969)........ 11

Air Line Pilots Association v. Scheduled Skyways,

Inc., 567 F. Supp. 171 (W.D. Ark. 1983), aff’d in

part, 738 F.2d 339 (8th Cir.), appeal dismissed

as moot, 746 F.2d 456 (8th Cir. 1984) .....000000000.... 14

Air Line Pilots Association v. Texas International

Airlines, Inc., 567 F. Supp. 66 (S.D. Tex. 1983),

appeal docketed, No. 83-2272 (5th Cir. July 18,

WEE iti cic Dacccccsedadtunbentesesbanecwaimcndaenamabaaes 14

Air Line Pilots Association v. Texas International

Airlines, Inc., 502 F. Supp. 423 (E.D.N.Y. 1980),

aff'd, 666 F.2d 16 (2d Cir. 1981) ............................ 17

Air Line Pilots Association v. Texas International

Airlines, Inc., 656 F.2d 16 (2d Cir. 1981) ............. 11

Air Transport Employees v. Western Airlines, Inc.,

105 L.R.R.M. (BNA) 3004 (C.D. Cal. 1980) ........ 17

Associated Pilots of Alaska International Air, Inc.

v. Alaska International Air, Inc., 96 L.R.R.M.

(BNA) 8288 (D. Alaska 1976) ............................. 14, 15

Brotherhood of Railway & Steamship Clerks v.

Association for the Benefit of Non-Contract Em-

ployees, 380 U.S. 650 (1965) .....00000 2. 7,13

Brotherhood of Railway & Steamship Clerks v.

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

1963), cert. dismissed, 379 U.S. 26 (1964) .......... 11, 15

Brotherhood of Railway, Airline & Steamship

Clerks v. Pan American World Airways, Inc.,

404 F'.2a $38 (26 Cir. 1960) .................................:. 13

Burke v. Compania Mexicana de Aviacion, 433 F.2d

1031 (9th Cir. 1970) .. sated a Renee eT ed 14

Chicago & Northwestern Reilway Co. v. United

Transportation Union, 402 U.S. 570 (1971)...... . 18,19

a ee

vi

TABLE OF AUTHORITIES—Continued

Page

Division No. 14, Order of Railroad Telegraphers v.

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

ls MR NOI scdictth fats caloncicakscichnciesecchctashinebcienitheatniiadihctininke 11, 12

Ford Motor Co. v. Huffman, 345 U.S. 330 (1953) .... 17

General Committee of Adjustment v. Missouri-

Kansas-Texas Railroad Co., 320 U.S. 323 (1948)... 7,8

General Committee of Adjustment v. Southern

Pacific Co., 820 U.S. 388 (1948) ....................-0-2---20 7

International Association of Machinists v. Alitalia

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

per curiam, 753 F.2d 3 (2d Cir. 1985) -.................. 10

International Association of Machinists v. Altair

Airlines, Inc., 481 F. Supp. 13859 (E.D. Pa.

Nita aa dole ndialancpmiantenldhlcdaatneiuanidalaas theives 14

International Association of Machinists v. North- |

east Airlines, Inc., 5386 F.2d 975 (1st Cir.), cert.

Gepmaal, GED TER. BER CITE) naceccccsvtcnerecctictervceenene 11

International Brotherhood of Teamsters v. Texas

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

A ali

ii ial alieetiambaahaindgesiotin 11,15

Kent v. Fugere, 488 F. Supp. 560 (D. Conn. 1977).. 14

Order of Railway Conductors v. Pennsylvania Rail-

PONE Go., BES UB. TOG CEDEG) cnciccicnciscrccccccncossssesses. 16

Order of Railway Conductors v. Switchmen’s Union,

269 F.2d 726 (5th Cir.), cert. denied, 361 U.S.

oe seni tceannenibedhbalceslioneneasures 8,17

Pan American World Airways, Inc. v. International |

Brotherhood of Teamsters, 275 F. Supp. 986

(S.D.N.Y. 1967), aff'd sub nom. Brotherhood

of Railway, Airline & Steamship Clerks v. Pan

American World Airways, Inc., 404 F.2d 938 (2d

I co ints ssamensbnandeaaindiiannials 13, 23

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

Cir. 1963), cert. denied, 376 U.S. 913 (1964) ..11, 14, 21

Steele v. Louisville & Nashville Railroad Co., 323

RE RS, ate oo ee nee 17

Summit Airlines, Inc. v. International Brotherhood

of Teamsters, 628 F.2d 787 (2d Cir. 1980) ........... 13

a

vii

TABLE OF AUTHORITIES—Continued

Page

Switchmen’s Union v. National Mediation Board,

135 F.2d 785 (D.C. Cir.), rev’d, 320 U.S. 297

bee AI eR ANE TEA SIRNA 2

Switchmen’s Union v. National Mediation Board,

ks ee | een neeNENe 5, 7, 11, 12, 15, 17-20

Texas & New Orleans Railroad Co. v. Brotherhood

of Railway & Steamship Clerks, 281 U.S. 548

SE IEE -sicssesinssciribiceinchiesaediaiueabigti inhi bcbeetniahdtanntdlameaicaamhithiaan 18, 19, 20

Texidor v. Ceresa, 590 F.2d 357 (1st Cir. 1978)...... 19, 20

Transport Workers Union v. CAB, 725 F.2d 775

(D.C. Cir.), cert. denied, 105 S. Ct. 87 (1984)... 3

Union of Professional Airmen v. Alaska Aeronauti-

cal Industries, Inc., 95 L.R.R.M. (BNA) 2868

a atest teas 14

Virginian Railway Co. v. System Federation No.

| oS f° % \ RC. , } RE eEReCOnaE Cra 18, 19

AGENCY DECISIONS:

Air Florida, Inc., 8 N.M.B. 546 (1981) 22000000200... 20

Air Weet, 6 N.M.B. 85 (1968) ................................... 17

Airlift International, 4 N.M.B. 142 (1967) _............. 17

Chesapeake & Ohio Railway, 9 N.M.B. 362 (1982).. 2

Continental Airlines, 10 N.M.B. 24 (1982) ............... 17

KLM Royal Dutch Airlines, 3 N.M.B. 1 (1953)...... 2

National Railroad Passenger Corp. (Amtrak), 12

N.M.B. 80 (1985) ............. Rotor anon Aes em AE 2

Northwest Airlines, Inc., 13 N.M.B. 399 (1986)...... 16, 22

Pan American USA, Inc., 7 N.M.B. 168 (1979) ...... 3,17

Puliman Co., 1 N.M.B. 608 (1946) ............................ 2

Republic Airlines, Inc. and Hughes Air Corp., 8

Se ee ne aceineal 2, 12, 22

Republic Airlines, Inc. and Hughes Air Corp., 8

Se Be ED sciinccoecaeninceisdiditndaidetdéciasnichicsicnacaczanersine 17

Republic Airlines, Inc., 7 N.M.B. 21 (1979) ............ 17

Southern Airways, Inc., 6 N.M.B. 817 (1979) ........... 2

Union Pacific Railroad, 8 N.M.B. 434 (1981) ....... a 2

United Airlines, Inc., 5 N.M.B. 65 (1968) ................ 2

Western Airlines, Inc., 7 N.M.B. 337 (1980) ...... cuaes 20

viii

TABLE OF AUTHORITIES—Continued

Page

STATUTES:

Railway Labor Act, 45 U.S.C. § 151 et seq. -..00......... passim

Section 2, First, 45 U.S.C. § 152, First -....0.0...... 4,19

Section 2, Third, 45 U.S.C. § 152, Third ............ 4, 9, 15,

17, 21

Section 2, Fourth, 45 U.S.C. § 152, Fourth ....... 4, 9, 15,

17,18

Section 2, Ninth, 45 U.S.C. § 152, Ninth ...... 7, 8, 15,18

IN THE

Supreme Cort of the Vunited States

OCTOBER TERM, 1986

No. 86-442

Arr LINE EMPLOYEES ASSOCIATION, INTERNATIONAL,

. Petitioner,

REPUBLIC AIRLINES, INC., NORTHWEST AIRLINES, INC.,

NWA, INC., BROTHERHOOD OF RAILWAY AND AIRLINE

CLERKS, and INTERNATIONAL ASSOCIATION OF MACHIN-

ISTS AND AEROSPACE WORKERS,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

Respondents Republic Airlines, Inc., Northwest Air-

lines, Inc. and NWA, Inc. respectfully request that this

Court deny the petition for writ of certiorari submitted

by the Air Line Employees Association, International

(“ALEA”), seeking review of the Seventh Circuit’s deci-

sion in this case.

COUNTERSTATEMENT OF THE CASE

The Operational Merger

NWA, Inc., the parent company of Northwest Airlines,

ine. (“Northwest”), acquired Republic Airlines, Ince.

(“Republic”) and operationally merged Republic into

Northwest on August 12, 1986. The combined operation

2

is conducted under the Northwest name and in accordance

with Northwest practices and procedures. All former Re-

public employees, including approximately 6,624 office,

clerical, fleet and passenger service employees for whom

ALEA had been the certified collective bargaining repre

sentative at Republic, became employees of Northwest on

August 12.

Pursuant to its authority under the Railway Labor

Act (the “Act’’), the National Mediation Board (““NMB’’)

has certified two crafts or classes at Northwest corre-

sponding to the single ALEA-represented craft at Re-

public, and has certified two unions—the Brotherhood of

Railway and Airline Clerks (“BRAC”) and the Interna-

tional Association of Machinists and Aerospace Workers

(“TAM”)—as the collective bargaining representatives of

those crafts. When the workforces were merged, North-

west followed the NMB’s consistent policy of applying the

bargaining structure of the “surviving” carrier to the

combined workforce following an airline merger,’ and

assigned former ALEA-represented employees to the two

Northwest crafts by matching former Republic job titles

with the most closely corresponding job titles at North-

west.

1 The NMB has held that where an operational merger creates a

single carrier for representation purposes, the certificates of unions

at the “acquired” carrier are “extinguished by operation of law”.

Republic Airlines, Inc. and Hughes Air Corp., 8 N.M.B. 49, 56

(1980) ; see also Southern Airways, Inc., 6 N.M.B. 817 (1979). The

NMB has long held that it will certify only one union, system-wide,

for each craft or class of employees at a single carrier. National

Railroad Passenger Corp. (Amtrak), 12 N.M.B. 80 (1985) ; Chesa-

peake & Ohio Ry., 9 N.M.B. 362 (1982); Union Pacific Railroad, 8

N.M.B. 434 (1981); United Air Lines, Inc., 5 N.M.B. 65 (1968);

KLM Royal Dutch Airlines, 3 N.M.B. 1 (1953); Pullman Co., 1

N.M.B. 503 (1946). The NMB has no authority to split a craft

among various unions. See Switchmen’s Union v. National Media-

tion Board, 135 F.2d 785, 792-93 (D.C. Cir.), rev'd on other grounds,

320 U.S. 297 (1943).

2 For example, in the Pan Am-National merger, the NMB ruled

that the pre-merger craft or class designation in effect at Pan Am,

3

Following the operational merger, Northwest continued

to recognize IAM and BRAC as the certified representa-

tives of all Northwest employees, including those added to

the respective crafts as a result of the merger.* Although

the former Republic employees remain subject to the col-

lective bargaining agreement in effect at Republic prior

to the merger, BRAC and IAM now administer that

agreement for former Republic employees falling within

their respective crafts. In order to facilitate the melding

of the workforces, beginning in July 1986, Northwest

sought to negotiate Merger Transition Agreements with

BRAC and IAM governing, inter alia, 1) the integration

of the Republic employees into the Northwest workforce

(including seniority integration), 2) the eventual unifica-

tion of the ALEA-negotiated collective bargaining agree-

ment with the BRAC and IAM agreements, and 3) ap-

plication of the BRAC and IAM union security clauses to

former Republic employees. Northwest entered into such

the surviving carrier, should prevail. Pan American USA, Inc., 7

N.M.B. 168 (1979). As a result, the single craft or class structure

at National disappeared, and the former National employees became

subject to the Pan Am craft structure.

The National employees were folded into the Pan Am system

according to their predominant duties at National. Because the

two airlines had different craft and classification systems, em-

ployees who had belonged to the same bargaining unit at

National were split into two different bargaining units at

Pan Am.

Transport Workers Union v. CAB, 725 F.2d 775, 777 (D.C. Cir.),

cert. denied, 105 S.Ct. 87 (1984).

3 Under NMB policy, the union which represents employees of

the surviving carrier becomes the representative of all the employ-

ees in the expanded unit. The displaced union is not entitled to

participate in negotiations between the carrier and the surviving

union. Such a result would create “chaos not only in the attempted

negotiations, but in the administrative machinery for nctification,

the place and time of meeting, and the like.” Order of Railway Con-

ductors v. Switchmen’s Union, 269 F.2d 726, 733 (5th Cir.), cert.

denied, 361 U.S. 899 (1959).

4

an agreement with BRAC on July 138, 1986, and is at-

tempting to negotiate a similar agreement with IAM.

Proceedings In The District Court

On July 18, 1986 ALEA filed a complaint seeking to

prevent Northwest from bargaining with BRAC and IAM

regarding the Merger Transition Agreements, and to

compel Northwest to continue to recognize ALEA as the

post-merger collective bargaining representative of the

Republic employees. Count I alleged that by recognizing

and bargaining with BRAC and IAM regarding post-

merger terms and conditions of employment affecting the

Republic employees, Northwest violated its duty under

Section 2, First of the Act, 45 U.S.C. § 152, First, to bar-

gain solely with ALEA. Count II alleged that such con-

duct constituted interference with, influence, and coercion

of the Republic employees in violation of Section 2, Third

and Fourth of the Act, 45 U.S.C. § 152, Third and Fourth.

Count III sought to compel Republic to arbitrate a griev-

ance filed by ALEA alleging that Republic had failed to

require Northwest to recognize ALEA as the post-merger

representative of the Republic employees. App. 4-21.‘

As relief for counts I and II, ALEA sought, inter alia,

a court order enjoining Northwest from recognizing and

negotiating with BRAC and IAM regarding the post-

merger terms and conditions of employment for Republic

employees, and requiring Northwest to negotiate any such

agreement with ALEA. App. 9-10, 14. As relief for

count III, ALEA sought an order requiring Republic to

submit the grievance to arbitration before a system board

of adjustment. App. 17-18. The relief sought in the

grievance was that Northwest “continue to recognize

ALEA as the bargaining representative and that [North-

* References to “App.” are to the appendix filed by petitioner in

the court of appeals, copies of which petitioner has previously filed

with this Court.

5

west] comply with the provisions of the [ALEA] col-

lective bargaining agreement... .” App. 168.

The district court, noting “the overwhelming and well-

developed case law addressing issues similar to those pre-

sented in the instant complaint,” held that ALEA’s com-

plaint raised a representation dispute within the exclu-

sive jurisdiction of the NMB, and accordingly dismissed

ALEA’s complaint for lack of jurisdiction. App. 329.

The Court of Appeals for the Seventh Circuit affirmed on

the same grounds. Pet. at A-1.

Pending Proceedings Before The National Mediation Board

On August 1, 1986 ALEA filed with the NMB a peti-

tion for an election to determine whether ALEA enjoys

majority support of any post-merger craft or class of

Northwest employees. On October 1, 1986 the NMB com-

pleted its hearing on the issue whether the craft or class

structure it previously certified at Northwest will continue

in effect, or whether another structure should be created.

Briefing on this issue is to be completed October 24, 1986.

ALEA also petitioned the NMB for the same relief it

sought before the courts below, namely, a declaration

that its certificate at Republic should continue to be recog-

nized until the election is completed. The NMB has not

yet ruled on ALEA’s request.

REASONS WHY THE PETITION SHOULD BE DENIED

The decision of the court below that ALEA’s complaint

presented a representation dispute outside federal court

jurisdiction does not warrant review by this Court. This

Court’s rulings in Switchmen’s Union v. National Media-

tion Board, 320 U.S. 297 (1943), and its companion cases

make clear that the NMB has exclusive jurisdiction in

disputes over the designation of employee representatives,

and do not permit exceptions to this statutory restriction

on federal court jurisdiction even on an “interim” basis.

Although ALEA characterizes its complaint as raising

6

statutory and contractual issues independent of its ad-

mitted representation disputes with BRAC and IAM, in

fact ALEA’s allegations are premised entirely on North-

west’s recognition of BRAC and IAM as the post-merger

representatives of former Republic employees for collec-

tive bargaining purposes. The decision below is consistent

with uniform authority holding that federal courts have

no jurisdiction to issue injunctive relief in disputes over

representational status following an airline merger. Con-

trary to ALEA’s suggestion that the denial of federal

court jurisdiction in these circumstances allows statutory

violations to go unremedied, the NMB is fully capable of

addressing ALEA’s representational concerns, and noth-

ing in the decision below or in this Court’s prior rulings

prevents a federal court from exercising jurisdiction

where the statutory or contractual issues are not depend-

ent on representation issues for their resolution.

ALEA’s disagreement with the NMB’s policy that the

certifications of unions on the “acquired” carrier in a

merger are extinguished by operation of law does not pro-

vide a basis for the issuance of a status quo injunction in

this case. If ALEA wishes to challenge the NMB’s merger

policy, it must do so directly by petitioning the NMB for

certification. The current proceedings before the NMB

provide the only proper means of protecting whatever rep-

resentational rights ALEA may have. ALEA’s reliance

on NMB cases to support its substantive claims, although

flawed, serves to confirm that ALEA’s statutory and con-

tractual allegations necessarily and directly raised repre-

sentation issues within the NMB’s exclusive jurisdiction.

7

I. The Seventh Circuit’s Determination That The District

Court Did Not Have Jurisdiction To Require North-

west To Recognize And Bargain With ALEA Following

The Republic-Northwest Merger Neither Raises An

Important Issue Requiring This Court’s Attention Nor

Conflicts With Decisions Of This Court Or Other

Courts Of Appeals

A. The Ruling That ALEA’s Complaint Raised A Rep-

resentation Dispute Within The Exclusive Jurisdic-

tion Of The National Mediation Board Does Not

Merit Review By This Court

The NMB’s exclusive jurisdiction to hear and resolve

disputes between unions over who will represent em-

ployees of a carrier subject to the Railway Labor Act

is well established. In Switchmen’s Union v. National

Mediation Board, supra, and two companion cases* de-

cided in 1943, this Court definitively ruled that the Act

commits the adjudication of representation disputes to

the NMB. Thus, a controversy between unions as to

which should be the proper representative of a craft

of employees does not constitute a proceeding “arising

under any law regulating commerce” over which the fed-

eral courts have jurisdiction. General Committee of

Adjustment v. Missouri-Kansas-Texay R. Co., 320 US.

323, 337 (1943).

However wide may be the range of jurisdictional dis-

putes embraced within § 2, Ninth, Congress did not

select the courts to resolve them. To the contrary,

it fashioned an administrative remedy and left that

group of disputes to the National Mediation Board.

If the present dispute falls within § 2, Ninth, the

administrative remedy is exclusive.

5 General Committee of Adjustment v. Southern Pacific Co., 320

U.S. 338 (1943); General Committee of Adjustment v. Missouri-

Kansas-Texas R. Co., 320 U.S. 323 (1943). Accord, Brotherhood of

Ry. & S.S. Clerks v. Association for the Benefit of Non-Contract

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

8

General Committee v. Missouri-Kansas-Texas R. Co.,

supra, 320 U.S. at 336 (footnotes omitted). Thus, to

the extent the decision of the court below was based on

its determination that federal courts lack jurisdiction to

hear representation disputes, it was undoubtedly correct.

Acknowledging that a dispute within the NMB’s juris-

diction does in fact exist over who will represent the

employees in the post-merger crafts (Pet. at 7), ALEA

nevertheless contends that the “factual context” of the

dispute also gives rise to statutory and contractual claims

over which the federal courts do have jurisdiction, and

that pursuant to that jurisdiction the courts below should

have issued an injunction requiring Northwest to recog-

nize and bargain with ALEA pending completion of the

NMB proceedings. According to ALEA, such interim re-

lief is necessary to preserve the NMB’s jurisdiction over

the representation dispute, and the absence of federal

jurisdiction to issue an injunction in these circumstances

will allow violations of the Act to go unremedied.

The Seventh Circuit’s decision is not as broad as

ALEA’s characterization of it would suggest, nor does

the absence of federal court jurisdiction to require a car-

rier to recognize and deal with a particular union follow-

ing a merger carry with it the dire consequences that

ALEA describes. Indeed, it is the exercise of federal

jurisdiction in matters relating to representation disputes,

and not the absence of such jurisdiction, that carries the

potential to interfere with the NMB’s statutory role and

impair the employee protections created by Congress in

6 Section 2, Ninth of the Act, 45 U.S.C. § 152, Ninth, provides that

“If any dispute shall arise among a carrier’s employees as to who

are the representatives of such employees . . . 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 ... the

individuals or organizations that have been designated . . . to repre-

sent the employees involved in the dispute, and certify the same

to the carrier... .”

9

the Act. Any challenge to Northwest’s recognition of

BRAC and IAM—and any request for interim relief

pending completion of the NMB proceedings—must be

made first to the NMB, in which Congress has vested

complete authority to resolve controversies of this nature.

1. The Court Below Correctly Determined That

‘ALEA’s Complaint Raised A Representation

Dispute

Whether or not the absence of federal court jurisdiction

to address representation disputes might ever leave em-

ployees or their representative without a remedy for

related violations of the Act, that is not the case herein.

ALEA’s complaint raised issues that fall directly within

the scope of representation disputes that could have been

—and now are—before the NMB for resolution. This is

simply not a case in which the absence of federal juris-

diction in any respect impairs the ability of a union to

protect its representational status.

As ALEA candidly explains in its petition, “‘[t]he prin-

cipal focus of the complaint is the allegation that by

agreeing to extend recognition to BRAC [and, presum-

ably, IAM] as the exclusive representative[s] of the post-

merger employee group .. . Northwest violated Section 2,

Third and Fourth of the Act, 45 U.S.C. § 152, Third and

Fourth.” (Pet. at 6.) The relief sought in the complaint,

and in the grievance that ALEA sought to compel Re-

public to arbitrate, was an order enjoining Northwest

from recognizing and negotiating with BRAC and IAM

regarding the post-merger terms and conditions of em-

ployment for Republic employees and requiring North-

west to negotiate any such agreement with ALEA. The

court below was clearly correct in finding that ALEA’s

allegations, although framed in statutory and contractual

terms, constituted a thinly disguised representation dis-

pute. As of the effective date of the merger, all Republic

employees became Northwest employees, and BRAC and

10

IAM were unquestionably the certified collective bargain-

ing representatives of the Northwest crafts into which

the Republic employees formerly represented by ALEA

fell.? Section 2, Ninth of the Act requires that a carrier

“treat with the representative so certified” by the NMB.

The gist of ALEA’s complaint was that Northwest never-

theless should recognize ALEA as the collective bargain-

ing representative of the former Republic employees, and

should be enjoined from bargaining with IAM and BRAC

regarding the terms of their post-merger employment.

This is precisely the kind of determination that the NMB

—and the NMB alone—is empowered to make.

This case does not raise statutory or contractual issues

independent of the representation dispute. It is the fact

of recognition itself, and not some independent conduct

on the part of Northwest, which is alleged to violate the

Act and the ALEA agreement. The merit of ALEA’s

substantive allegations is dependent on a determination

of which union is the post-merger representative of the

former Republic employees. To require Northwest to

recognize and bargain with ALEA in these circumstances

necessarily decides the very question before the NMB.

The same is true of ALEA’s request for interim relief.

For the period it is in effect, an injunction prescribing

which union Northwest must deal with regarding its

employees necessarily decides a representation dispute

and invades the province Congress set aside for the NMB.

This case presents nothing more than an attempt, by art-

ful pleading, to obtain from a court what the Act man-

dates must be provided by the NMB.*

7 The NMB certifications of BRAC and IAM as employee repre-

sentatives were not affected by the substantia] increase in the size

of the craft as a result of the merger. See IAM v. Alitalia Airlines,

600 F. Supp. 268 (S.D.N.Y. 1984), aff'd per curiam, 753 F.2d 3 (2d

Cir. 1985) (certification still valid despite fact that unit began

with only 11 employees and expanded to over 450 employees).

8 As the Court of Appeals for the Sixth Circuit s:ated in rejecting

just such an attempt:

11

2. Courts Have Consistently Recognized That In-

junctions To Preserve The Representational

Status Of A Union Following A Merger Would

Impermissibly Interfere With The NMB’s

Jurisdiction

Contrary to the assertions in ALEA’s petition, courts

have not had any difficulty squaring the principle of ex-

clusive NMB jurisdiction in representation cases with

their own obligation to enforce carrier obligations under

the Act. With its decision in this case, the Seventh Cir-

cuit joins four other courts of appeals in holding that

federal courts do not have jurisdiction to require a car-

rier to recognize one union over another following a

merger.® The courts have uniformly recognized that the

issuance of an injunction requiring a carrier to recognize

By skillful pleading in this case, appellant has tried to avoid

the consequences of [the Switchmen’s Union trilogy], which

clearly otherwise would be controlling. Appellant contends that

the complaint does not ask for an adjudication of a dispute

concerning representation rights, but involves a dispute be-

tween the representative of employees and a carrier concerning

the latter’s contract obligations. . . . Looking through form to

substance, we agree with the District Court that, although the

suit is cast in the form of an action under the law of contracts,

it in fact involves a representation dispute.

Brotherhood of Railway & Steamship Clerks v. United Air Lines,

Inc., 325 F.2d 576, 579 (6th Cir. 1963), cert. dismissed, 379 U.S. 26

(1964).

* International Bhd. of Teamsters vy. Texas Int’] Airlines, Inc.,

717 F.2d 157 (5th Cir. 1983); International Ass’n of Machinists

v. Northeast Airlines, Inc., 536 F.2d 975 (1st Cir.), cert. denied,

429 U.S. 961 (1976) ; Brotherhood of Railway & Steamship Clerks

v. United Air Lines, Inc., 325 F.2d 576 (6th Cir. 1963), cert. dis-

missed, 379 U.S. 26 (1964); Division No. 14, Order of Railroad

Telegraphers v. Leighty, 298 F.2d 17 (4th Cir.), cert. denied, 369

U.S. 885 (1962). See aiso Air Line Pilots Ass’n, Int’l v. Texas Int’l

Airlines, Inc., 656 F.2d 16 (2d Cir. 1981); Air Line Employees

Ass’n v. CAB, 413 F.2d 1092 (D.C. Cir. 1969); Ruby v. American

Airlines, Inc., 323 F.2d 248 (2d Cir. 1963), cert. denied, 376 US.

913 (1964).

12

and negotiate with one of several competing unions fol-

lowing a merger would not be an act of neutrality un-

related to the NMB’s functions. Such an injunction would

constitute an active, interim disposition of the representa-

tion question. In this case, the relief requested by ALEA

would divide the Northwest crafts and preserve the rep-

resentative status of a union whose certification was

“extinguished by operation of law’ upon the merger

of Republic into Northwest. A judicially-imposed require-

ment that Northwest bargain with ALEA would, for the

period it is in effect, determine the identity of the em-

ployee representative, and would do so in a manner con-

trary to NMB precedent and to the rights of BRAC and

IAM."' Such a result clearly usurps the NMB’s authority

and crosses the line drawn by this Court in Switchmen’s

Union and its companion cases.

The cases cited by ALEA to establish a conflict among

the circuits regarding jurisdiction to issue an injunction

notwithstanding a related representation dispute simply

do not involve the kind of direct interference with the

NMB’s function that is present here. More importantly,

not a single case cited by ALEA grants relief similar to

that requested herein, 7.e., an order requiring a carrier

to recognize and bargain with a particular union whose

representative status is disputed. Indeed, the cases cited

by ALEA demonstrate that the courts have not found it

difficult at all to distinguish between issues that infringe

upon the NMB’s exclusive jurisdiction and those that do

not, and have not hesitated to exercise their jurisdiction

over the latter.

10 Republic Airlines, Inc. and Hughes Air Corp., supra, 8 N.M.B.

at 56.

11 See Division No. 14, Order of Railroad Telegraphers v. Leighty,

298 F.2d 17. 21 (4th Cir.), cert. denied, 369 U.S. 885 (1962) (in

post-merger representation dispute “an injunction . .. would not

merely hold the line, without injury to either party . . . Rather, it

would .. . give to Divisiom 14 the rights it claims to the exclusion

of Division 13.’’).

13

Thus, in Summit Airlines, Inc. v. International Broth-

erhood of Teamsters, 628 F.2d 787 (2d Cir. 1980), which

ALEA cites to show that some courts have granted in-

junctions notwithstanding the presence of representation

issues, the court merely upheld the issuance of an injunc-

tion against a union’s efforts to bypass the NMB and

force recognition through picketing and economic coer-

cion. The Second Circuit noted that the carrier did not

have a right to invoke NMB election and certification

procedures,” so that the only way to enforce the man-

date of Section 2, Ninth was to enjoin further economic

coercion by the union. Similarly, in Pan American World

Airways, Inc. v. International Brotherhood of Teamsters,

275 F. Supp. 986 (S.D.N.Y. 1967), aff'd sub nom. Brother-

hood of Railway, Airline and Steamship Clerks v. Pan

American World Airways, Inc., 404 F.2d 938 (2d Cir.

1969), the court issued a declaratory judgment and an

injunction against a strike by a union to force the carrier

to recognize and bargain with it despite a pending NMB

election to determine which of two unions was the true

representative. The injunctions in Summit and Pan

American did not require the carrier to recognize or

negotiate with any one union, and their issuance did not

decide a representation dispute or otherwise infringe on

the NMB’s authority. These cases in no respect support

ALEA’s claim of federal! jurisdiction to issue an injunc-

tion in this case.

In Adams v. Federal Express Corp., 547 F.2d 319

(6th Cir. 1976), cert. denied, 481 U.S. 915 (1977), the

court held that jurisdiction existed to hear union claims

that the carrier, through “threats, harassment, surveil-

lance activities and selective discharges during the course

of the organizational drive” had violated Section 2,

12Summit Airlines, Inc. v. International Bhd. of Teamsters,

supra, 628 F.2d at 793, citing Brotherhood of Ry. & S.S. Clerks v.

Association for the Benefit of Non-Contract Employees, 380 U.S.

650, 666 (1965).

14

Third and Fourth. ALEA has made no such allegations

here, instead claiming only that the very act of recogniz-

ing BRAC and IAM constitutes improper influence and

coercion. In Air Line Pilots Association v. Texas Inter-

national Airlines, Inc., 567 F. Supp. 66 (S.D. Tex. 1983),

appeal docketed, No. 83-2272 (5th Cir. July 18, 1983),

the court required the carrier to arbitrate a grievance

complaining of the carrier’s refusal to apply the existing

collective bargaining agreement to a subsidiary carrier,

at which the union was seeking representational status.

In finding that requiring the carrier to arbitrate the

grievance would not interfere with the NMB proceeding,

the court contrasted the relief it was granting from that

sought in Ruby v. American Airlines, Inc., 323 F.2d 248

(2d Cir. 1963), cert. denied, 376 U.S. 913 (1964), in

which the union “had sought an order by the district

court compelling the carrier to bargain with it... in

the face of an ongoing representation dispute pending

before the NMB....” 567 F. Supp. at 77. In the pres-

ent case, ALEA seeks both from the court and from court-

ordered arbitration relief similar to that sought in Ruby,

for which the Texas International court implied court

jurisdiction would not exist. The allegations of employee

coercion and interference in the remaining cases cited

by ALEA™ are based on the termination or layoff of

employees during union organizing campaigns. The NMB

has no authority to remedy such discharges, and the issu-

13 Burke v. Compania Mexicana de Aviacion, 433 F.2d 1031 (9th

Cir. 1970); Air Line Pilots Ass’n v. Scheduled Skyways, Inc., 567

F. Supp. 171 (W.D. Ark. 1983), aff'd in part on other grds, 738 F.2d

339 (8th Cir.), appeal dismissed as moot, 746 F.2d 456 (8th Cir.

1984); International Ass’n of Machinists v. Altair Airlines, Inc.,

481 F. Supp. 1359 (E.D. Pa. 1979); Union of Professional Airmen

v. Alaska Aeronautical Industries, Inc., 95 L.R.R.M. (BNA) 2868

(D. Alaska 1977); Kent v. Fugere, 438 F. Supp. 560 (D. Conn.

1977) ; Associated Pilots of Alaska International Air, Inc. v. Alaska

International Air Inc., 96 L.R.R.M. (BNA) 3233 (D. Alaska 1976).

15

ance of an injunction in such circumstances therefore

does not interfere with the NMB’s functions.”

Contrary to ALEA’s characterization of decisions re-

jecting federal jurisdiction in representation cases as

espousing a “mechanistic approach” to jurisdiction, courts

have very carefully and correctly applied this Court’s

teachings in Switchmen’s Union, and have found federal

jurisdiction lacking only where its exercise would truly

interfere with the NMB’s statutorily mandated duties."

The record in the present case demonstrates that the

jurisdictional issue was extensively briefed in the district

court,’® and that the ruling of the court below correctly

applied the controlling legal principles. There is, in short,

no conflict or confusion among the lower courts as to the

limits on federal jurisdiction in representation disputes,

and the decision of the court below in this case is entirely

consistent with the principles on which those limits are

based.

3. NMB Procedures Provide The Means By Which

A Union May Seek To Preserve Its Representa-

tive Status

As becomes clear upon analysis of ALEA’s complaint

in light of controlling NMB authority, ALEA’s real dis-

pute is with the NMB’s substantive policy that the certifi-

14 See Associated Pilots of Alaska International Air, Inc. v. Alaska

International Air, Inc., supra, 96 L.R.R.M. at 3237 (Section 2, Ninth

“provides an effective remedy for the resolution of representational

disputes, including the company union situation and to compel a

reluctant employer to bargain .... However, [Section 2, Ninth]

provides no remedy for other violations, such as the unlawful dis-

charges... herein alleged... .”’).

15 See, e.g., International Bhd. of Teamsters v. Texas Int’l Air-

lines, Inc., 717 F.2d 157 (5th Cir. 1983); Brotherhood of Ry. &

S.S. Clerks v. United Air Lines, Inc., 325 F.2d 576 (6th Cir. 1963),

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

16 See Memorandum In Support Of Defendant Northwest’s Motion

To Dismiss, Or In The Alternative, For Summary Judgment.

16

cate of the union at the “acquired” carrier in an airline

merger is extinguished as a matter of law. By its suit

here, ALEA seeks to obtain indirectly what it apparently

has concluded it cannot obtain from the NMB itself. This

is improper. See Order of Railway Conductors v. Penn-

sylvania Railroad Co., 323 U.S. 166 (1944) (no review

having been sought of NMB decision, court powerless to

grant remedy directly or indirectly setting decision

aside).

Moreover, ALEA is not without recourse before the

NMB. ALEA can pursue at least three remedies in that

forum. First, ALEA can ask the NMB to adopt a policy

whereby the certificate of the union at an “acquired”

carrier continues to be effective until an election is held

to determine the post-merger employee representative. If

the NMB were to issue such a change in policy, as ALEA

has asked it to do, then ALEA’s certificate would remain

in effect and could be enforced in federal court. Another

Republic union, the Association of Flight Attendants, also

filed such a request. See Northwest Airlines, Inc., 13

N.M.B. 399 (1986).17 Second, ALEA can ask the NMB

to investigate whether Republic or Northwest is the “sur-

viving” carrier. If ALEA were able to convince the

NMB that Republic rather than Northwest was the “sur-

viving” carrier following the merger, ALEA’s certificate

would continue in effect, the certificates of BRAC and

TAM would be extinguished, and ALEA would become

the post-merger employee representative.

Third, ALEA can petition the NMB for an election.

Section 2, Ninth of the RLA requires the NMB to act

17The NMB determined that Northwest was the “surviving”

carrier, and concluded that “[a]ll certifications issued on Republic

Airlines were extinguished on August 12, 1986.” Northwest Air

Lines, Inc., 13 N.M.B. 399, 403 (1986).

18 The “acquiring” carrier is not always the “surviving” carrier

for representation purposes. For example, following the acquisition

of Continental Airlines, Inc. by Texas International Airlines, Inc.,

Continental was the surviving carrier.

17

upon that petition within 30 days, although NMB action

in an election often takes longer.’ The NMB has repeat-

edly emphasized that this is the ousted union’s proper

recourse after it loses its representative status in a

merger.” The NMB is now in the midst of just such a

proceeding.”?

B. The Decision Below Is Not Inconsistent With Deci-

sions Of This Court Upholding Federal Jurisdiction

To Enforce The Railway Labor Act

ALEA’s contention that the decision of the court below

is inconsistent with court decisions upholding federal ju-

risdiction to enforce Section 2, Third and Fourth of the

Act is unpersuasive, and ignores the teachings of Switch-

19 Pending a decision by the NMB, the employees will be repre-

sented by BRAC or IAM, which have a duty to represent them

fairly. Ford Motor Co. v. Huffman, 345 U.S. 330, 337 (1953) ; Steele

v. Louisville & Nashville Railroad Co., 323 U.S. 192 (1944). Under

the Act, when one union succeeds another as a collective bargaining

representative, the new union administers the labor contract exe-

cuted by its predecessor. Order of Ry. Conductors v. Switchmen’s

Union, supra; Air Transport Employees v. Western Airlines, Inc.,

105 L.R.R.M. (BNA) 3004, 3007 (C.D. Cal. 1980) ; Airlift Interna-

tional, 4 N.M.B. 142 (1967).

20 Republic Airlines, Inc. and Hughes Air Corp., 8 N.M.B. 13, 18

(1980) ; Pan American USA, Inc., 7 N.M.B. 168 (1979). The NMB

has evolved special procedures which make it easier for an ousted

union to obtain an election after a merger than in other circum-

stances, and sometimes has required no showing of interest whatso-

ever. See Republic Airlines, 7 N.M.B. 21 (1979); Continental Air-

lines, 10 N.M.B. 24 (1982); Air West, 5 N.M.B. 85 (1968).

21 ALEA’s argument that the NMB’s policy permits carriers to

arrange the corporate form of their merger transaction so that one

carrier or the other is the surviving entity, and thus predetermine

whether one union or another will be recognized following the

merger, is without merit. The NMB “has shown itself alert to

prevent carriers from frustrating representation rights by artful

corporate devices.” Air Line Pilots Ass’n y. Texas Int’l] Airlines,

Inc., 502 F. Supp. 428, 425 (E.D.N.Y. 1980), aff’d, 656 F.2d 16 (2d

Cir. 1981). See, e.g., Pan American USA, Inc., 7 N.M.B. 168 (1979).

18

men’s Union that the withholding of federal jurisdiction

in representation matters is a result of congressional re-

striction, not judicial discretion. To be sure, in Texas &

New Orleans Railroad Co. v. Brotherhood of Railway &

Steamship Clerks, 281 U.S. 548 (1930), Virginian Railway

Co. v. System Federation No. 40, 300 U.S. 515 (1987),

and Chicago & Northwestern Railway Co. v. United

Transportation Union, 402 U.S. 570 (1971), this Court

ruled that federal courts did in fact have subject matter

jurisdiction over claims of unlawful carrier influence and

coercion. The Texas & New Orleans Railroad decision,

however, was decided before Congress added Section 2,

Ninth to the Act, thereby establishing the NMB as the

exclusive forum for representation disputes. In Switch-

men’s Union, this Court distinguished the circumstances

presented by Texas & New Orleans Railroad and Vir-

ginian Railway from the very different circumstances

presented by a representation dispute arising after the

enactment of Section 2, Ninth:

In those cases it was apparent that but for the gen-

eral jurisdiction of the federal courts there would

be no remedy to enforce the statutory commands

which Congress had written into the Railway Labor

Act. The result would have been that the ‘right’ of

collective bargaining was unsupported by any legal

sanction. That would have robbed the Act of its

vitality and thwarted its purpose. Such considera-

tions are not applicable here. The Act in § 2, Fourth

writes into law the ‘right’ of the ‘majority of any

craft or class of employees’ to ‘determine who shall

be the representative of the craft or class for the

purposes of this Act.’ That ‘right’ is protected by

§ 2, Ninth which gives the Mediation Board the

power to resolve controversies concerning it....

320 U.S. at 300-301. Thus, Switchmen’s Union made

clear that Texas & New Orleans Railroad and Virginian

Railway cannot be read to establish federal court juris-

diction to determine issues relating to the employees’

19

choice of bargaining representative, which Congress gave

the NMB the exclusive power to resolve.”? Courts that

have confronted arguments such as those made by ALEA

here have had no difficulty in squaring the two lines of

eases. See, e.g., Aircraft Mechanics Fraternal Associa-

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

Cal. 1976); see also Texidor v. Ceresa, 590 F.2d 357

(1st Cir. 1978).

According to ALEA, under the “better-reasoned”’ lower

court decisions as well as Texas & New Orleans Railroad,

Virginian Railway, and Chicago & Northwestern Rail-

way, “the proper inquiry is whether the relief sought will

interfere with or usurp functions exclusively committed

to the NMB.” Pet. at 15. Even if ALEA were correct

that the court below and other courts reaching similar

results utilized a different standard, under Switchmen’s

Union the only proper answer to that inquiry in this case

would have to be in the affirmative. An order requiring

Northwest to recognize and negotiate with ALEA would

not serve to ensure Northwest’s “neutrality” during the

NMB proceedings, but rather would decide who would

represent the former Republic employees during the pe-

riod it was in effect. Whatever arguments ALEA might

make in support of allowing each union in a merger

situation to continue to represent its members until the

NMB decides who the representative at the combined op-

eration will be, it is up to the NMB to decide whether

or not to accept those arguments and adopt the policy

ALEA advocates. To date, however, the NMB has not

done so, and federal courts may not impose such a policy,

22In Chicago & Northwestern Railway, this Court upheld federal

jurisdiction to enforce Section 2, First of the Act, which requires

a carrier to make every reasonable effort to make and maintain

collective bargaining agreements. In so ruling, this Court noted

that the NMB’s jurisdiction did not extend to such disputes. 402

U.S. at 580-81.

20

even as a nominally ‘interim’ measure.** Switchmen’s

Union makes clear that the NMB’s jurisdiction over rep-

resentation matters is complete, and the courts may not

invade that jurisdiction even for the ostensible purpose

of assisting the NMB in preserving its jurisdiction. The

NMB—and the NMB alone—has the authority under the

Act to determine what policies and procedures in repre-

sentation matters are necessary to effectuate the statu-

tory guarantees which it is charged to protect.

II. Northwest’s Recognition Of BRAC And IAM As The

Post-Merger Representatives Of The Former Republic

Employees Did Not Violate The Railway Labor Act

Correctly noting that the court below did not reach

the merits of its substantive allegations, ALEA never-

theless suggests that the Seventh Circuit’s “approach” is

contrary to the Act and controlling precedent. ALEA’s

suggestion is without merit. The mere fact that a carrier

recognizes and bargains with one union during a repre-

sentation dispute does not alone constitute unlawful inter-

ference or coercion under the Act.** See Texidor v.

23 ALEA’s claim that failure to maintain the status quo will en-

able the carrier to make a unilateral choice as to the representative

of its employees is erroneous. Under NMB policy, the choice is

dictated by the circumstances of the merger. In any event, this

case does not present the sort of blatant company unionism that

was at issue in Texas & New Orleans Railroad and was held there

to justify judicial intervention.

24 Under the structure of the Act, there is no way for a carrier

to raise a representation dispute before the NMB; only employees,

or those seeking to represent employees, may do so. Nor is the

carrier a formal party to representation disputes before the NMB.

See, e.g., Air Florida, Inc., 8 N.M.B. 546 (1981) (carrier lacks

standing to chailenge Board’s waiver of election bar rule) ; Western

Airlines, Inc., 7 N.M.B. 337, 338 n.1 (1980) (carrier’s request for

hearing on proper class or craft denied). Thus, in a merger con-

text, the surviving carrier has no alternative but to honor the

outstanding certificates of its own unions—in this case, BRAC and

IAM. The displaced union then may invoke the NMB’s services to

investigate the representation dispute.

21

Ceresa, supra, 590 F.2d at 539 (“Negotiating and sign-

ing a collective bargaining agreement are not, in and

of themselves, the kind of coercion envisioned by Section

2 Third’). Such actions have also been held insufficient

to create a violation of the Act beyond the power of the

NMB to address. See Ruby v. American Airlines, Inc.,

supra, 323 F.2d at 254 (allegation that carrier unlaw-

fully bargained with in-house union insufficient to take

case out of representation dispute); Aircraft Mechanics

Fraternal Association v. United Airlines, Inc., supra, 406

F. Supp. at 508-09 (allegation that carrier negotiations

with rival union improperly coerced employees fell within

N MB jurisdiction).

ALEA also challenges respondents’ position that under

applicable NMB precedent, its certification was extin-

guished by operation of law upon the merger of Republic

into Northwest. ALEA’s argument that Northwest has

misread the NMB’s merger decisions is not only incorrect;

it also demonstrates the dependence of ALEA’s substan-

tive allegations on the representation issues now before

the NMB. ALEA contends that the NMB decisions,

rather than establishing that the certifications of unions

on an “acquired” carrier are extinguished by operation

of law, instead stand for the proposition that following

a merger a carrier may voluntarily recognize a union

which has a “clear majority” of the post-merger employee

group. Because in the present case the identity of the

majority union has not yet been determined by the NMB,

ALEA argues that Northwest’s voluntary recognition of

BRAC and IAM was improper. Pet. at 22-24.

ALEA’s argument fails on several counts. First,

Northwest’s understanding of NMB policy is not mere

speculation. In accordance with its policy of certifying

only a single representative for a system-wide craft or

class at a carrier, the NMB looks at more than just the

number of employees represented by the competing unions

in deciding which will become the representative at the

22

combined operation. In Northwest Airlines, Inc., 18

N.M.B. 899 (1986), the NMB stated that “the most

relevant factor” in determining whether a merger re-

sults in a single carrier is “the degree of integration of

operations.” 13 N.M.B. at 401. For example, in the

Republic-Hughes Air merger, in order to determine the

status of competing unions, the NMB examined, inter

alia, the acquiring carrier’s motive for the acquisition, in-

cluding the existence of any anti-union animus; how the

combined operation was going to be held out to the public;

whether there would be combined management and flight

operations; and whether there would be combined labor

relations and payroll policies. Republic Airlines, Inc. and

Hughes Air Corp., supra, 8 N.M.B. at 54-55. Indeed, the

NMB’s decision in Republic does not even mention which

of the competing unions claimed a majority of the posi-

merger employees. Nevertheless, the NMB ruled that the

certification of the union at the acquired carrier was

“extinguished by operation of law.” 8 N.M.B. at 56.

Second, even if ALEA were correct, Northwest had a

reasonable basis for believing that its own craft designa-

tions would remain in place after the merger and that

BRAC and IAM would continue to represent a majority

of the employees in those crafts.”* In these circumstances,

25 ALEA’s claim that it will be the majority union in the combined

employee group following the merger (Pet. at 3 n.3) is based on an

assumption that the single Republic craft structure would survive

the merger, rather than the two craft structure certified by the NMB

at Northwest. Should the Northwest structure survive—which, given

the NMB’s consistent policy of recognizing the unions at the surviv-

ing carrier in an airline merger, is more likely to be the case—it does

not appear that ALEA will have a majority in either Northwest

craft. Although ALEA asserts in its Petition (Pet. at 4 n.3) that

Northwest neither argued nor offered evidence in the district court

that it believed BRAC and IAM would have a majority in the post-

merger crafts, Northwest did in fact submit such evidence. See

App. 404, 407. This evidence was submitted in response to argu-

ments by ALEA in opposition to Northwest’s motion to dismiss

and was before the district court on ALEA’s motion for reconsidera-

23

the mere fact that ALEA had challenged the representa-

tive status of BRAC and IAM before the NMB did not

preclude further dealings with those unions as the certi-

fied representatives of Northwest’s workforce.”

Most importantly, however, whether ALEA or North-

west is correct in its understanding of NMB policy, the

pivotal nature of such policy to ALEA’s allegations of

statutory and contractual violations demonstrates beyond

any doubt that this action is fundamentally representa-

tional in nature. A court simply cannot decide the merits

of ALEA’s complaint, or grant the injunctive relief

ALEA has requested, without infringing on issues com-

mitted by Congress to the NMB’s exclusive jurisdiction.

In these circumstances, the decision of the court below

is in full accord with longstanding precedent in this and

other courts, and does not merit review.

tion of the court’s order dismissing this case. In any event, respond-

ents agree with ALEA that the determination of majority status is

the function of the NMB, and need not be resolved herein.

26 ALEA cites Pan American World Airways, Inc. v. International

Bhd. of Teamsters, supra, fcr the proposition that a carrier may

not negotiate even with a certified union during the pendency of

a representation dispute. Pet. at 21. In Pan Am, however, the court

held only that a carrier could not be required to negotiate in such

circumstances. Nothing in Pan Am or in any other case cited by

ALEA stands for the proposition that a carrier is prohibited from

negotiating with the certified representative of its employees in

circumstances similar to those herein.

24

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

JOHN J. GALLAGHER, P.C.

Counsel of Record

CHARLES L. WARREN

JAMES E. CONWAY

MARGARET H. SPURLIN '

1333 New Hampshire Ave., N.W.

Suite 400

Washington, D.C. 20036

(202) 887-4000

Counsel for Respondents

Of Counsel: Republic Airlines, Inc.,

AKIN, GUMP, STRAUSS, Northwest Airlines, Inc.,

Haver & FELD and NWA, Ine.

1333 New Hampshire Ave., N.W.

Suite 400

Washington, D.C. 20036

(202) 887-4000

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