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

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No.s6-442 “| OCT 20 tpg

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IN THE leemenmemeee CLERK

Supreme Court of the United States

OCTOBER TERM, 1986

AIR LINE EMPLOYEES ASSOCIATION, INTERNATIONAL,

Petitioner,

Vv.

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 Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

AMICI CURIAE BRIEF IN OPPOSITION

JOSEPH GUERRIERI, JR.*

JOHN A. EDMOND

GUERRIERI & SWEENEY

Suite 300

1150 - 17th Street, N.W.

Washington, D.C. 20036

(202) 296-7002

Counsel for Amici Curiae

BRAC and IAM

October 20, 1986 * Counsel of Record

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QUESTION PRESENTED

Whether the National Mediation Board has exclusive

jurisdiction over disputes under the Railway Labor Act

concerning representation rights of competing unions fol-

lowing the merger of two airlines.

(i)

TABLE OF CONTENTS

Page

8 BE) 8 y | | eae i

INTEREST OF THE AMICI CURIAE .......................... 1

SUPPLEMENTAL STATEMENT OF THE CASE....... 2

REASON FOR DENYING THE WRIT .....................-... 3

THE JUDGMENT BELOW IS IN ACCORD WITH

PRIOR DECISIONS OF THIS COURT, THE

COURTS OF APPEALS AND THE NATIONAL

a ee 3

A. Prior Decisions of this Court Vest Exclusive

Jurisdiction Over Representation Disputes with

the National Mediation Board .................00000000..... 4

B. Courts of Appeals Have, Without Exception, Re-

jected Jurisdiction Over Representation Disputes

Arising Out Of Airline Mergers.........-.......222...22.... 6

C. The National Mediation Board Has Established

Policy Guidelines Governing Inter-Union Rep-

resentation Disputes Following Airline Mergers.. 8

os aierennsiiinlageenbamentanvencn 9

(iii)

TABLE OF AUTHORITIES

CASES Page

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

Ine., 666 F.2d 16 (2d Cir. 1961) ............................. 3, 6, 7

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) ................22.0..20000---- 4,6

General Committee of Adjustment v. Missouri-

Kansas-Texas R.R. Co., 320 U.S. 323 (1948).... 3,5. 6

General Committee of Adjustment v. Southern Pa-

ctfie Co., 8320 U.S. 388 (1948) ....................:.......... 3,6

International Ass’n of Machinists v. Northeast Air-

lines, Inc., 5386 F.2d 975 (1st Cir.), cert. denied,

| ER ee nn eee. ae 4,6,7

International Bhd. of Teamsters v. Texas Int’l Air-

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

Switchmen’s Union v. National Mediation Board,

REIN De Ca LO 3, 4, 5, 6

AGENCY DECISIONS

Republic Airlines, Inc., 7 N.M.B. 21 (1979) ............. 4,9

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

Pa. Ge Cleee) ................--...... x lack nO, 4,8

STATUTES AND REGULATIONS

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

Section 2, Fourth, 45 U.S.C. § 152, Fourth...... 5

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

IN THE

Suprene Court of the United States

OCTOBER TERM, 1986

No. 86-442

AIR LINE EMPLOYEES ASSOCIATION, INTERNATIONAL,

ss 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 Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

AMICI CURIAE BRIEF IN OPPOSITION

Amici curiae Brotherhood of Railway and Airline

Clerks and International Association of Machinists and

Aerospace Workers request the Court to deny the peti-

tion for writ of certiorari, seeking review of the Seventh

Cireuit’s judgment in this case. The opinion of the

Seventh Circuit is now reported at 798 F.2d 967.

INTEREST OF THE AMICI CURIAE

Amici Curiae are the Brotherhood of Railway, Airline

and Steamship Clerks, Freight Handlers, Express and

Station Employes (“BRAC”) and the International As-

sociation of Machinists and Aerospace Workers (“IAM”’).

BRAC is the certified collective bargaining representative

of the craft or class of clerical, office, fleet and passenger

service employees on Northwest Airlines, Inc. (“North-

west”). The IAM is the certified collective bargaining

representative of, among others, the mechanics and re-

lated craft or class on Northwest. BRAC and the IAM’s

interest in this action is readily apparent as they are

the unions whose post-merger certifications are recognized

by Northwest and consequently the subject of this action

by the Air Line Employees Association, International

(“ALEA”). Northwest and ALEA have both consented

to BRAC and the IAM’s participation as amici curiae.

BRAC and the IAM are participating as amici curiae

because ALEA brought its action in the Northern Dis-

trict of Illinois and did not name either BRAC or the

IAM as parties. BRAC and the IAM filed a joint motion

to intervene. The district court did not rule on that mo-

tion prior to dismissing the entire action for lack of

jurisdiction. Thus, BRAC and the IAM are participating,

with this Court’s approval, as amici curiae.

SUPPLEMENTAL STATEMENT OF THE CASE

Petitioner’s statement of the case fails to discuss the

opinions below. We summarize the opinions here because

they demonstrate the soundness of the courts’ rulings on

the issue presented.

The district court declined to hear the merits of peti-

tioner’s complaint holding that: “[i]n view of the over-

whelming and well-developed case law”, petitioner’s com-

plaint presented a “representation dispute over which the

federal courts do not have jurisdiction” (Pet. App. A-6).

The court of appeals affirmed, holding that “[g]iven

the Mediation Board’s undeniable sole jurisdiction over

representation matters, we infer . . . a congressional in-

tention to allow that agency alone to consider the post-

merger problems that arise from existing collective bar-

gaining agreements.” 798 F.2d at 968-9, quoting Inter-

national Bhd. of Teamsters v. Texas Int'l Airlines, Inc.,

717 F.2d 157, 164 (5th Cir. 1983). Like the district

court, the Seventh Circuit “found no reason to depart

from the consistent well-considered analysis of [their]

colleagues in other circuits.” 798 F.2d at 968. The Sev-

enth Circuit recognized that although petitioner’s com-

plaint was “couched in terms of enforcing the collective

bargaining agreement”, the underlying dispute was

“basically a representational dispute and therefore com-

mitted to the sole jurisdiction of the [National Mediation

Board].” Id.

REASON FOR DENYING THE WRIT

THE JUDGMENT BELOW IS IN ACCORD WITH

PRIOR DECISIONS OF THIS COURT, THE COURTS

OF APPEALS AND THE NATIONAL MEDIATION

BOARD.

This Court has held in a series of cases that represen-

tation disputes which arise under the Railway Labor

Act, 45 U.S.C. §§ 151 et seq., are within the sole discre-

tion of the National Mediation Board (“NMB”). Switch-

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

(1948); General Committee of Adjustment v. Missourt-

Kansas-Texas R.R. Co., 320 U.S. 323 (1943); General

Committee of Adjustment v. Southern Pacific Co., 320

U.S. 338 (1943).

In recent years a number of representation disputes

have arisen as a result of numerous mergers which have

taken place in the airline industry. The courts of ap-

peals have held, without exception, that employee repre-

sentation disputes which inevitably arise as a result of

such acquisitions are not within the federal court’s juris-

diction, but must be brought before the NMB. [nt’l Bhd.

of Teamsters v. Texas Int’l Airlines, 717 F.2d 157 (5th

Cir. 1983); Air Line Pilots Ass’n, Int'l v. Texas Int'l

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

Ass’n of Machinists v. Northeast Airlines, Inc., 536 F.2d

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

Brotherhood of Ry. & S.S. Clerks v. United Airlines, Inc.,

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

26 (1964).

Finally, the NMB has established policy guidelines

governing representation disputes arising out of consoli-

dation of the work force following airline mergers. Re-

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

(1980); Republic Airlines, Inc., 7 N.M.B. 21 (1979).

Such policy provides for recognition of the union certifi-

cations on the surviving carrier coupled with a lesser

showing of interest (35%) than ordinarily required by

the ousted unions in order to obtain a new and prompt

election. Based on this overwhelming uniform case law

and the NMB’s policy governing disputes such as peti-

tioners which arise in the context of airline aquisitions,

the petition for writ of certiorari should be denied.

A. Prior Decisions of this Court Vest Exlusive Jurisdic-

tion Over Representation Disputes with the National

Mediation Board.

Section 2, Ninth of the Railway Labor Act states that

“Ti]f any dispute shall arise among a carrier’s employ-

ees as to who are the representatives of such employees

. it shall be the duty of the Mediation Board... to

investigate such dispute and to certify... the names...

of the . . . organizations that have been designated and

authorized to represent the employees involved in the

dispute, and certify the same to the carrier.” 45 U.S.C.

§ 152, Ninth.

This Court has held, pursuant to Section 2, Ninth,

that representation disputes involving controversies sur-

rounding the designation and authorization of representa-

tives of employees covered under the Railway Labor Act

are committed to the specific jurisdiction of the NMB.

Switchmen’s Union v. NMB, supra, 320 U.S. 297. In

Switchmen’s Union v. NMB, the union sued in federal

court to overturn the NMB’s certification of a rival union.

This Court held that federal courts lack jurisdiction over

representation disputes and that the NMB’s jurisdiction

under Section 2, Ninth of the Railway Labor Act was

exclusive and not subject to review. The Court noted

that the congressional intent in drafting that section

of the Railway Labor Act was that the “dispute was to

reach its last termina) point when the administrative

finding was made. There was to be no dragging out of

the controversy into other tribunals of law.” 320 USS.

at 305.

In General Committee v. M-K-T, supra, 320 U.S. 323,

this Court considered a jurisdictional dispute between

two unions over which union was the proper representa-

tive for the presentation of various claims to the em-

ployer. In a situation similar to this case, the carrier

reached an agreement with one of the unions which the

other union argued was void and violative of Section 2,

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

Fourth. 320 U.S. at 333.

This Court observed that the Railway Labor Act estab-

lished a general principle of collective bargaining and

“applied a command or prohibition enforceable by judicial

decree to only some of its phases... ..” Jd. at 335. The

Court went on to state that Section 2, Ninth of the Rail-

way Labor Act was designed to “resolve a wide range of

jurisdictional disputes between unions.” Jd. at 336.

“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 dis-

putes to the National Mediation Board.” Jd.

In General Committee v. M-K-T, this Court noted that

“the command of the [RLA] should be explicit and the

purpose to afford a judicial remedy plain” before the

Court should imply jurisdiction. /d. at 337. This Court

acknowledged that “[t]here may be as a result many

areas in this field where neither the administrative nor

the judicial function can be utilized. But that is only

to be expected where Congress still places such great

reliance on the voluntary process of conciliation, media-

tion and arbitration .... Courts should not rush in

where Congress has not chosen to tread.” Id. (citation

omitted). Finally, in a companion case to Switchmen’s

Union v. NMB and General Committee v. M-K-T, this

Court held that “Congress left the so-called jurisdictional

controversies between unions to agencies and tribunals

other than the Courts.” General Committee of Adjust-

ment v. Southern Pacific Co., 320 U.S. 338, 344 (1943).

B. Courts of Appeals Have, Without Exception, Rejected

Jurisdiction Over Representation Disputes Arising

Out Of Airline Mergers.

The courts of appeals have held, without exception, that

the NMB has exclusive jurisdiction over inter-union dis-

putes arising out of airline mergers and acquisitions.

International Bhd. of Teamsters v. Texas Int'l Airlines,

Inc., 717 F.2d 157 (5th Cir. 1983); Air Line Pilots

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

(2d Cir. 1981); International Ass’n of Machinists v.

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

denied, 429 U.S. 961 (1976); Brotherhood of Ry & SS.

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

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

BRAC v. United Airlines, supra, 325 F.2d 576, con-

cerned an action filed by BRAC following the United

Airlines merger with Capital Airlines. BRAC, which had

represented former Capital employees, argued that: United

was bound by the terms of Capital’s coliective bargaining

agreements. The Sixth Circuit held that although the

complaint was couched in terms of a contract dispute, it

actually involved a representation dispute and therefore

was not within the court’s jurisdiction. 825 F.2d at 579.

IAM v. Northeast Airlines, supra, 536 F.2d 975, in-

volved the merger of Northeast Airlines into Delta Air-

lines. The IAM had been the representative of certain

employees on Northeast prior to its merger with Delta.

The union sued over the carrier’s refusal to bargain.

The First Circuit affirmed the dismissal of the complaint

Stating that “[a]t the very least, the merger created

real doubts about whether plaintiffs represent the major-

ity of any Delta craft or class of employees, and where

there is such doubt, federal courts leave resolution of

the dispute to the National Mediation Board.” 536 F.2d

at 977.

ALPA v. Texas Int'l Airlines, supra, 656 F.2d 16, in-

volved a corporate restructuring of Texas International

Airlines which resulted in the creation of New York Air.

Following such restructuring, New York Air refused to

recognize the Air Line Pilots Association and instead en-

tered into employment contracts with individual pilots.

ALPA sued Texas Air and New York Air seeking an

order requiring the carriers to recognize ALPA and en-

joining them for refusing to honor the ALPA collective

bargaining agreement. The Second Circuit noted that

the case did not “present a traditional representation dis-

pute; ... [n]Jevertheless, even in such unconventional

contexts, section 2, Ninth affords the sole and mandatory

means for resolving disputes over representation.” 656

F.2d at 24 (citation omitted). The court held that “as

soon as the action reveals a representation dispute, the

court is required to dismiss the complaint.” Jd. at 23

(citation omitted).

Finally, following the acquisition of Continental Air-

lines by Texas International Airlines, the Teamsters

brought an action in federal court seeking an order re-

quiring Texas Air to honor the Teamsters’ collective bar-

gaining agreement with Continental. JBT v. Texas Int'l

Airline, supra, 717 F.2d 157. The Fifth Circuit held that

the dispute was actually a representation dispute and

therefore committed to the sole jurisdiction of the NMB.

“A court may not entertain an action involving such a

dispute even if it arises in the context of otherwise

justiciable claims.” 717 F.2d at 161. The Fifth Circuit

held that a court should not even grant a status quo

injunction if an underlying representation dispute exists,

as that would result “at least for the period of the in-

junction, of deciding the representation issue.” Jd. Thus,

the court inferred a congressional intent to allow the

NMB “alone to consider the post-merger problems that

arise from existing collective bargaining agreements.”

Id. at 164.

C. The National Mediation Board Has Established Policy

Guidelines Governing Inter-Union Representation Dis-

putes Following Airline Mergers.

The NMB has established a policy governing disputes

which arise in the context of airline mergers. In Republic

Airlines, Inc. and Hughes Air Corp, 8 N.M.B. 49 (1980),

which involved the merger of Hughes Airwest with Re

public Airlines, the NMB determined that where the

merged carrier would hold itself out to the public as a

single airline, only one certified bargaining representa-

tive per craft or class would remain, that of the surviving

carrier. The NMB held that “all certifications on [the

acquired airline] were extinguished by operation of law

upon Airwest’s acquisition by Republic.” 8 N.M.B. at 56.

The Board observed that permitting classifications of the

merged carrier to survive a merger would lead to “un-

even representation, duplication of effort and confusion” —

and would reduce the ability of airlines to integrate op-

erations and to maintain a single system. Id. at 54-55;

see also IBT v. Texas Int'l Airlines, supra, 717 F.2d at

163. |

The National Mediation Board, however, affords spe-

cial protection to a union such as the petitioner whose

certifications are extinguished as the result of the merger.

The NMB policy guidelines provide that a union which

previously represented the craft or class “on any carrier

involved in the merger or similar action” may, within

sixty days of the government’s approval of the merger,

file an application supported by only a thirty-five (35)

percent showing of interest instead of the majority in-

terest ordinarily required by the Board. Republic Air-

lines, Inc., 7 N.M.B. 21, 22 (1979). Moreover, such show-

ing of interest may be evidenced by dues check-off author-

izations which the ousted union obtained pursuant to a

check-off agreement with the acquired airline. Id.

It is evident that this case presents a representation

dispute arising as a consequence of the acquisition of

Republic Airlines by Northwest Airlines. The Seventh

Circuit’s decision is therefore fully in accord with prior

decisions of this Court, the courts of appeals which have

considered similar issues and the NMB’s policy guidelines

governing airline mergers and acquisitions.

CONCLUSION

For the foregoing reasons, this Court should deny the

petition for writ of certiorari.

Respectfully submitted,