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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1986
- **Citation:** 479 U.S. 962

## Text

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

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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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_2493%3A2. Public record. Not legal advice.