Petition for Writ of Certiorari — Air Line Pilots Ass'n International v. United Air Lines, Inc.

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Supreme Court, U.S.

FILED

86-1296

FEB 4

No. 86- ae D8

ERK

IN THE “I

Supreme Court of the United States

OCTOBER TERM, 1986

Arr LINE PILoTs ASSOCIATION, INTERNATIONAL,

Petitioner,

Vv.

UNITED AIR LINES, INC.,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

MICHAEL E. ABRAM*

JAY P. LEVY-WARREN

CHRISTOPHER N. SOURIS

STEPHEN PRESSER

COHEN, WEISS and SIMON

330 West 42nd Street

New York, New York 10036

(212) 563-4100

Attorneys for Petitioner

Air Line Pilots Association,

International

*Counsel of Record

QUESTIONS PRESENTED

1. Whether the Railway Labor Act protects newly-

hired workers, who were not hired to be strike replacements,

from employer retaliation when they participate in a lawful

strike on the date designated by a carrier as their first day

of employment.

2. Whether the court of appeals violated the principles

established in Icicle Seafoods, Inc. v. Worthington, 106

S. Ct. 1527 (1986), by engaging in de novo factfinding after

reversing the district court’s legal standard for determining

employee status under the Railway Labor Act.

iii

TABLE OF CONTENTS

OCUBSIIONS PRESENTED ............0505:

Beams Oe AUTESORITIES ..... 1... cee ees

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a re ath so ves avs eeveus se

+ rr

StAlement OF THE CASE ..............

REASONS FOR GRANTING THE WRIT .....

THE COURT OF APPEALS’ CONSTRUC-

TION OF EMPLOYEE STATUS UNDER

THE RLA PRESENTS IMPORTANT, UNRE-

SOLVED QUESTION OF FEDERAL LAW

AND CONFLICTS WITH DECISIONS OF

THIS COURT, OTHER COURTS OF AP-

PEALS, AND THE NATIONAL MEDIATION

Rik vo ba ase kee aw aOO8 4 0:86

THE COURT OF APPEALS IMPERMIS-

SIBLY ENGAGED IN ITS OWN FACTFIND-

ING IN DIRECT CONFLICT WITH RECENT

DECISIONS OF THIS COURT ...........

EI ES ie eae er

rn 0N

TABLE OF AUTHORITIES

CASES

Air Line Pilots Ass'n, Int'l v. Alaska Air Lines, Inc.,

rc-R we Ry Oy Vw AB) |S Ree

Air Micronesia, 10 N.M.B. 11 (1982) ........

Allied Chem. & Alkali Workers v. Pittsburgh Plate

Giass Co., 404 U.S. 152 (1971) ............

Anderson v. City of Bessemer, 105 S. Ct. 1504

Oe oa wk wh hs oe ok eo eR RR

Arthur v. United Air Lines, Inc., No. 85-Z-1835

(D. Colorado daby 3, 1906) ...- 22. cccsane

Brotherhood of Locomotive Firemen v. ICC, 147

F.2d 312 (D.C. Cir.), cert. denied, 325 U.S. 560

CP ieee aaa s ae eb cee hele

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

minal Co., 394 U.S. 369 (1969) .......... 2p

Brotherhood of Ry. & S.S. Clerks v. Florida E.C.

Be. Fe ee en OE see iweb cea eee

Chicago & N.W. Ry. v. United Transp. Union, 402

Se ie eee es kee whe oe

Demarco Vv. United States, 415 U.S. 449 (1974) ..

Icicle Seafoods, Inc. vy. Worthington, 106 S. Ct.

RE I 6 oo 6 sa Beker deere tees

Nashville, C. & St. L. Ry. v. Railway Employees’

Dep’t, 93 F.2d 340 (6th Cir. 1937) ........

NLRB v. Erie Resistor Corp., 373 U.S. 221 (1963)

NLRB v. Hearst Publications, Inc., 322 U.S. 111

PO Se boa Seek Ee ee ee ae eee

13, 16

passim

PAGE

NLRB v. New England Tank Indus., Inc., 302 F.2d

Bee Cae ee . hs ek 0k Se ees passim

Northwest Airlines, Inc., 2 N.M.B. 19 (1948) .. 10

Pennsylvania R.R. v. Day, 360 U.S. 548 (1959) .. passim

Pomrening V. United Air Lines, Inc., 448 F.2d 609

CH SPEED bs bere deuce eee 13

Pullman-Standard v. Swint, 456 U.S. 273 (1974) .. 17,20

Railway Labor Executives’ Ass’n v. Boston & Maine

Corp., 124 Lab.Rel.Rep. (BNA) 2145 (1st Cir.

Se; Be, DE 6 5 eee eae eae ee 8

Scheduled Skyways, Inc., 12 N.M.B. 488 (1983) .. 12

South Chicago Coal & Dock Co. v. Bassett, 309 U.S.

Be SE k's hb CREO ee eS 10

United Air Lines, Inc., 4 N.M.B. 30 (1965) .... 19

United Air Lines, Inc., 9 N.M.B. 266 (1982) .... 18,19

United Air Lines, Inc., 10 N.M.B. 458 (1983) .. 18

STATUTES

pd RE | Pere hare pean: FAN 2

ee ss os o's heed cha een ena weces 2

ee ee I od 5s 0c ve VG eee eae 2

et ik oe on Sn ak Lee 10

a Ss EE hc bok oo a CRS eee eee 11

a Sr. Oe CD oe 5 on cue ae ees 11

ee Se ee ee I ns oa ae ee passim

Co: Gis SE, ioe ae eee passim

SD Saas ee ek ik bes ea era 8

ese Me Ieee 13

PAGE

LEGISLATIVE HISTORY

Hearings on H.R. 7180 Before the House Committee

on Interstate and Foreign Commerce, 69th Cong.,

Se Sa i WE eke eek ect ethewtes 9

RULES AND REGULATIONS

Re A: ree 16, 17

cee Mee ls | ere 19

Oe Gh ee 0 bb Chacko oe kw heriad es 19

MISCELLANEOUS

NMB Representation Manual (1985) .......... 11,12

IN THE

Supreme Court of the United States

October Term, 1986

No. 86-

Arr LINE PILOTS ASSOCIATION, INTERNATIONAL,

Petitioner,

Vv.

UNITED AIR LINES, INC.,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Petitioner Air Line Pilots Association, International

(“ALPA”) hereby requests that the Court issue a writ of

certiorari to review the judgment and opinion of the United

States Court of Appeals for the Seventh Circuit in this

proceeding to the extent the court of appeals reversed the

judgment of the United States District Court for the North-

ern District of Illinois.

OPINIONS BELOW

The opinion of the court of appeals (App. 1la-56a) is

reported at 802 F.2d 886 (7th Cir. 1986). The findings

of fact and conclusions of law entered by the district court

(App. 57a-122a) are reported at 614 F. Supp. 1020 (N.D.

Ill. 1985); the subsequent order of the district court modi-

fying its findings of fact and conclusions of law (App. 123a-

128a) is reported at 616 F. Supp. 849 (N.D. Ill. 1985).

JURISDICTION

The judgment of the court of appeals was entered on

September 29, 1986. (App. 129a-130a). The order of the

court of appeals denying rehearing was entered on Decem-

ber 22, 1986. (App. 13la-132a). The jurisdiction of this

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

STATUTES INVOLVED

This case concerns the proper interpretation of §§ 1, Fifth

and 2, Fourth of the Railway Labor Act (“RLA”), 45

U.S.C. §§ 151, Fifth and 152, Fourth. These and other

pertinent statutory provisions are reprinted in the separately

presented Appendix to this petition. (App. 133a-136a).

STATEMENT OF THE CASE

This petition raises issues of widespread importance in

the air and rail transportation industries concerning the

rights of newly-hired workers and the scope of permissible

carrier coercion under the RLA. The case arose from the

1985 labor dispute between respondent United Air Lines,

Inc. (“United”) and petitioner ALPA, the authorized col-

lective bargaining representative under the RLA for the

pilots employed by United. In the course of that dispute,

the United pilots engaged in a lawful strike over United’s

demand for a reduced pay scale for newly-hired pilots.

Motivated by “anti-union sentiment” (App. 2la n.11),

United responded to the imminent strike with measures in

part designed “to destroy the union or at the very least

discourage union membership.” (App. 21a). ALPA there-

upon commenced this action in the district court alleging

that United’s efforts to break the strike and to destroy

ALPA violated the RLA; the district court’s jurisdiction

was based on 28 U.S.C. §§ 1331 and 1337.

Shortly after the conclusion of the strike, ALPA sought

relief in the district court from three features of United’s

strike program: (1) United’s effort to coerce several hun-

dred newly-hired pilots (the “Group of 500”) to serve as

strikebreakers by threatening that they would “never, ever,

work for this air line, ever” (App. 7a) if they joined the

strike on the day designated by United as their first day of

work; (2) United’s attempt to reward nonstriking pilots,

and punish strikers, by granting a form of superseniority

to nonstriking pilots in a system-wide rebid of pilot posi-

tions; and (3) United’s award of premium pay to certain

pilots hired from other airlines to serve as strike replace-

ments. This petition concerns United’s coercion of the

Group of 500, who were selected and trained by United

for purposes of business expansion and who received offers

of employment which “were not contingent on working

during a strike” (App. 107a), but whom United refused

to recall following the strike.

Beginning in the autumn of 1984, United experienced a

pilot shortage as a result of workforce attrition and planned

business expansion. (App. 63a). To meet its operational

needs, United selected 600 of approximately 4,800 appli-

cants, trained several hundred of these individuals for

entry-level second officer positions, and informed them that

they would have priority with respect to future offers of

employment for those positions. (App. 65a-66a). Although

members of this Group of 500 became provisionally quali-

fied to serve as second officers upon the completion of their

initial training, United declined to employ them while it

negotiated with ALPA to obtain a reduced pay scale for

new hires. (App. 64a-67a). The last time United hired

pilots prior to the Group of 500, it placed them on the

payroll on their first day of initial pilot training (App. 63a-

64a); United immediately reverted to this practice on May

i7, 1985, with respect to strike replacements. (App. 69a).

On April 20, 1985, United made unconditional written

offers of pilot employment effective May 17, 1985, to the

bulk of the Group of 500. (App. 67a). Under the RLA’s

mandatory process of negotiation and mediation, United

either would reach agreement with ALPA for a reduced

new-hire pay scale by that date or would be free to impose

its final bargaining proposal concerning the new-hire pay

scale. The Group of 500 accepted these offers of employ-

ment and, at United’s direction, began reporting for a

brief refresher training course in early May. During this

period, United confirmed to the Group of 500 that their

“change to ‘permanent status will occur on May 17, 1985.’ ”

(App. 67a) (quoting Pl. Ex. 6). Indeed, 150 Group

members received written confirmation of their status as a

“United Airlines line pilot” prior to May 17. (Court Ex.

1 § 44; Pl. Ex. 75). United admitted that it did not hire

the Group of 500 to serve as strikebreakers and that its job

offers to Group members were not contingent on their work-

ing during a strike. (App. 68a, 107a-108a). Instead,

United pursued an entirely separate hiring program to

attract strike replacements. (App. 107a).

Despite these commitments, “after the Group of 500 had

returned to [United’s facilities in] Denver . . . United at-

tempted to coerce them into serving during the strike.”

(App. 108a). Some of the Group of 500 members were

warned that they “would not make it through their proba-

tion year” if they joined the strike. (App. 69a). Others

were told they would be “terminated.” (App. 70a). United’s

chief executive officer warned that, if the Group of 500 did

not work during a strike, “they will never, ever, work for

this airline, ever.” (App. 69a).

On May 17, the United pilots began their strike over the

reduced new-hire pay scale. At that point, the Group of

500 faced the following choice imposed by United: they

could either join the strike at the risk of never working for

United or serve as strikebreakers and take the jobs ox the

pilots who were striking over United’s demand for a re-

duced new hire pay scale which would apply to the Group

of 500. Most of the Group of 500 decided to join the strike.

Those who crossed the picket line were promptly placed

on the payroll and given conditional pilot seniority numbers.

(App. 69a; Pl. Exs. 82, 83). During the strike, United

hired approximately 54° pilots through its strike replace-

ment program; more than half of these pilots did not enter

training until after the strike. (App. 125a-126a). United

treated all the pilots who accepted offers of employment

during the strike as permanent replacements. (App. 125a-

126a). After the strike ended, United refused to recall the

Group of 500 members who failed to cross the picket line

“except for cases involving personal hardship or other

extenuating circumstances.” (App. 9a).

Following a two-week trial, the district court held that

the Group of 500 were United employees as of May 17,

1985, under § 1, Fifth of the RLA, 45 U.S.C. § 151, Fifth,

because United had unconditionally designated that date

as their first day of work. (App. 103a-104a). Relying on

the reasoning of NLRB v. New England Tank Indus., Inc.,

302 F.2d 273 (1st Cir. 1962), the district court concluded

that “[p]hysically reporting to work to establish an em-

ployer-employee relationship is not a prerequisite to the right

to strike on the first day of employment” (App. 103a) and

“would be little more than an empty gesture.” (App. 104a).

The court further held that United’s effort to coerce the

Group of 500 into serving as strikebreakers violated § 2,

Fourth of the RLA, 45 U.S.C. § 152, Fourth. (App. 101a-

102a). The court ordered United to restore the striking

Group of 500 members to the status of employees, with

seniority dating from May 17, and enjoined United from

—

discriminating against striking pilots in the award of pilot

positions. (App. 121a-122a). The district court also found

that United’s attempt to reward nonstriking pilots with a

form of superseniority violated § 2, Fourth of the RLA and

that United’s premium payments to strike replacements were

lawful. (App. 110a-114a). After a subsequent motion by

United, the court modified its order to permit United to

delay the recall of striking Group of 500 members until

United had additional vacancies following the completion

of training of the strike replacements. (App. 123a-128a).

On appeal by United and cross-appeal by ALPA, the

court of appeals affirmed the district court’s rulings as to

the strike rebid scheme and the premium pay for replace-

ments. The court explained that “the rebid was an attempt

by United either to destroy the union or at the very least

discourage union membership.” (App. 21a). However, the

court reversed the district court’s conclusion that the Group

of 500 members were statutory employees with the right to

strike as of May 17, 1985. The court held that it was

“forced to conclude” (App. 44a) that the “plain and

ordinary meaning” of the RLA prohibited a newly-hired

pilot from being treated as a statutory employee “unless

[the pilot] has performed services for the employer under

that employer’s supervision.” (App. 48a). The court of

appeals thus reached the unlikely conclusion that the Group

of 500 could not participate in ALPA’s lawful strike over

their pay scale without first serving as strikebreakers by

“performing work” for United during the strike. In apply-

ing this newly-devised legal standard, moreover, the court

of appeals engaged in a de novo resolution of disputed

issues of material fact to determine that the Group of 500

had not actually “performed work” for United in May

of 1985. (App. 44a-48a).

The court of appeals denied ALPA’s petition for rehear-

ing and suggestion for rehearing in banc on December 22,

1986 (App. 131a-132a), but later stayed the issuance of

its mandate pending ALPA’s filing of this petition.

REASONS FOR GRANTING THE WRIT

The court of appeals’ novel construction of the RLA,

which denied newly-hired pilots the statutory right to join

a lawful strike on the date designated by the carrier as their

first day of employment, presents important questions of

federal law under § 1, Fifth and § 2, Fourth of the RLA

that have not been, but should be, resolved by the Court.

In addition, the court of appeals’ interpretation of employee

status under the RLA conflicts with a prior decision of the

Court, decisions of the First, Sixth and Ninth Circuits courts

of appeals and decisions of the National Mediation Board

(“NMB”). Even if the court of appeals correctly inter-

preted § 1, Fifth, it disregarded the Court’s recent decision

in Icicle Seafoods, Inc. v. Worthington, 106 S. Ct. 1527

1986), by finding that the Group of 500 did not “perform

work” for United despite the existence of material unre-

solved factual issues under its newly-devised legal standard.

I. THE COURT OF APPEALS’ CONSTRUCTION OF EM-

PLOYEE STATUS UNDER THE RLA PRESENTS IM-

PORTANT, UNRESOLVED QUESTIONS OF FEDERAL

LAW AND CONFLICTS WITH DECISIONS OF THIS

COURT, OTHER COURTS OF APPEALS, AND THE

NATIONAL MEDIATION BOARD.

Employees subject to the RLA “enjoy the right to engage

in primary strikes over major disputes,” Brotherhood of

R.R. Trainmen Vv. Jacksonville Terminal Co., 394 U.S. 369,

384 (1969), and, as the court of appeals reaffirmed in this

case, enjoy statutory protection from employer retaliation

for participating in a lawful strike under § 2, Fourth of the

RLA, 45 U.S.C. § 152, Fourth. (App. 16a-21a). See also

Railway Labor Executives’ Ass’n v. Boston & Maine Corp.,

124 Lab. Rel. Rep. (BNA) 2145, 2149-51 (1st Cir. Dec.

22, 1986). The court of appeals nonetheless felt com-

pelled by the “plain meaning” of § 1, Fifth to hold that a

newly-hired pilot may only join in a lawful strike on the

day designated by a carrier as his first day of work without

fear of employer retaliation if he first crosses the picket line

and works as a strikebreaker. This construction of § 1,

Fifth also prevents new hires from participating in the selec-

tion of a bargaining representative after they have been

placed on the payroll but are awaiting their first work assign-

ment, in direct conflict with the NMB’s application of § 2,

Fourth in representation disputes. Moreover, the court of

appeals’ construction of § 1, Fifth has created an unprece-

dented and powerful economic weapon for employers to

coerce incumbent employees in exercising their right to

strike.

1. Contrary to the court of appeals, the Court has recog-

nized that the literal language of § 1, Fifth does not address

the temporal issue of when a person becomes or ceases to

be an “employee.” In Pennsylvania R.R. v. Day, 360 U.S.

548 (1959), the Court held that employees who had re-

tired and relinquished all rights to return to railroad service

were included within the § 1, Fifth definition of “employee”

for purposes of determining National Railroad Adjustment

Board jurisdiction of “disputes between an employee .. .

and a carrier” under § 3, First (i) of the RLA, 45 U.S.C.

§ 153, First (i). See Day, 360 U.S. at 550-53. The Court

in Day rejected the position that, under the “plain meaning

of its language,” § 1, Fifth does not apply to a retiree, who

“could not be, and was not ‘in the service’ of the railroad

or ‘subject to its continuing authority to supervise . . . the

manner of rendition of his service.’” Id. at 555-56 (Black,

J., dissenting) (quoting 45 U.S.C. § 151, Fifth). Instead,

the Court held that “[t]he purpose of the Act is fulfilled if

the claim itself arises out of the employment relationship

which Congress regulated.” Day, 360 U.S. at 552; accord

Air Line Pilots Ass'n, Int’l vy. Alaska Air Lines, Inc., 735

F.2d 328, 328-29 (9th Cir. 1984).

Notwithstanding the clear direction of the Day decision,

the court of appeals believed “[i]t would be in direct con-

travention of the RLA’s definition of employee to conclude

that a person may become an employee even though he

never performed any work for the employer and was never

under that employer’s direct supervision.” (App. 47a).

However, as the Sixth Circuit explained in Nashville,

C. & St. L. Ry. v. Railway Employees’ Dep’t, 93 F.2d

340 (6th Cir. 1937), the primary phrase defining employee

status in § 1, Fifth is “in the service of a carrier.” The

parenthetical phrase “(subject to its continuing authority

to supervise and direct the manner of rendition of his

service)” simply “codifies the common law rule of master

and servant.” Jd. at 342. The testimony of labor spokes-

person Donald Richberg in the 1926 RLA hearings con-

firms that this phrase was a term of art “taken from the

classification orders of the Interstate Commerce Com-

mission” and “used to distinguish between the regular em-

ployee of the railroad and the independent contractor.”

Hearings on H.R. 7180 Before the House Committee on

Interstate and Foreign Commerce, 69th Cong., Ist Sess.

65 (1926).' Congress intended the clause “performs any

1 As the Court has often noted, the 1926 RLA consisted of an

agreement worked out between representatives of labor and the

carriers which was subsequently enacted into law. See, e.g., Chicago

& N.W. Ry. v. United Transp. Union, 402 U.S. 570, 576 (1971).

As the labor spokesperson for that agreement, Richberg’s statements

in the congressional hearings “are entitled to great weight in the

construction of the Act.” Id.

work defined as that of an employee or subordinate official”

to distinguish between statutory employees or subordinate

officials and supervisors. See Nashville, 93 F.2d at 342;

see also Brotherhood of Locomotive Firemen v. ICC, 147

F.2d 312, 315 (D.C. Cir.), cert. denied, 325 U.S. 560

(1945); Northwest Airlines, Inc., 2 N.M.B. 19, 23-26

(1948). Accordingly, the court of appeals’ conclusion that

a person must first “perform work” for a carrier “under

its supervision” to become an RLA employee under § 1,

Fifth simply misapprehended statutory terms of art which

Congress did not intend to determine when an RLA

“employment relationship,” Day, 360 U.S. at 552, begins

or terminates.

2. Instead of using a “plain meaning” approach to deter-

mine “employee” status under § 1, Fifth, the Court in Day

looked to “[t]he clash of economic forces which led to the

passage of the Act, the history of the enactment, and the

legislative policies which it expresses and which guide

judicial interpretation,” Day, 360 U.S. at 550, and the

specific policy concerns embodied in the substantive RLA

provision at issue in that case, see id. at 551-53. The Nash-

ville court likewise rejected a “too literal” approach to con-

struing § 1, Fifth and focused instead on the scope of RLA

bargaining obligations to determine whether furloughees

were “employees” for purposes of eligibility to vote for a

bargaining representative. See Nashville, 93 F.2d at 343.

The Court has also explained that the definition of “em-

ployee” in the National Labor Relations Act (“NLRA”),

29 U.S.C. § 151 et seqg., can only be interpreted by refer-

ence to “the history, terms and purposes of the legislation”

and “ ‘must be read in light of the mischief to be corrected

and the end to be attained.’”” NLRB v. Hearst Publications,

Inc., 322 U.S. 111, 124 (1944) (quoting South Chicago

Coal & Dock Co. v. Bassett, 309 U.S. 251, 259 (1940) ).

Indeed, the Court has interpreted the term “employee” in

the NLRA to exclude retirees in applying an employer’s

obligation to bargain with “the representative of the em-

ployees” under 29 U.S.C. § 158(d) and to include retirees

in defining the conditions on employer payments to a

union trust fund for the benefit of “employees” under 29

U.S.C. § 186(c)(5). See Allied Chem. & Alkali Workers

v. Pittsburgh Plate Glass Co., 404 U.S. 152, 166-71 (1971).

In stark contrast to Day, Nashville, and these NLRA deci-

sions, the court of appeals explicitly refused even to con-

sider the purposes of § 2, Fourth in deciding that a newly-

hired pilot cannot be an “employee” until he performs work

under a carrier’s supervision. (App. 44a n.17).

3. In determining whether the Group of 500 were em-

ployees for purposes of applying § 2, Fourth, the district

court concluded that they became statutory employees on

the date designated by United as their first day of employ-

ment. This conclusion is consistent with the “in the service

of a carrier” language of § 1, Fifth, the decisions of the

NMB and the Sixth Circuit in Nashville, and the purposes

of § 2, Fourth.

If May 17, 1985, had been the eligibility cut-off date

in a representation election rather than the first day ofa

strike, the district court’s unreversed factual findings would

clearly establish the Group of 500 as statutory employees

for § 2, Fourth purposes. In determining which workers

may exercise the § 2, Fourth right to select a collective

bargaining representative, the NMB has explicitly included

all individuals who have a substantial and reasonable ex-

pectation of performing future services for the carrier as

RLA “employees” under § 1, Fifth.? In Air Micronesia, 10

2 See NMB Representation Manual § 5.303 (1985) (temporary

employee eligible to the extent he has “ta reasonable expectation of

(footnote continued on following page)

N.M.B. 11 (1982), the NMB applied this reasonable ex-

pectation standard to exclude individuals who had com-

pleted training two years before the election but had never

been offered employment, whose “present availability was

unknown,” and who “have at best the mere hope of an

offer if an opening arises at some time in the future.” Jd.

at 14-15. The court of appeals’ construction of “employee”

forecloses the inquiry mandated under Air Micronesia and

substitutes its own test of whether an individual has ever

“performed work” for a carrier. The court of appeals’

interpretation of § 1, Fifth directly conflicts with the NMB

decision in Scheduled Skyways, Inc., 12 N.M.B. 488

(1983), that pilots undergoing initial pilot training while

on the payroll of a carrier, but not yet assigned to fly the

carrier’s aircraft, are employees under § 2, Fourth. See id.

at 489-91.

In Nashville, the Sixth Circuit likewise held that fur-

loughees who possess seniority rights are “employees” for

purposes of eligibility to vote for a bargaining representa-

tive because they have a present interest in negotiations

which affect the rules, rates of pay and working conditions

that will apply to them at such time, if any, that they may

perform work for the carrier in the future. See Nashville,

93 F.2d at 343. In the absence of a strike on May 17, 1985

—the date designated by United for inclusion on the senior-

ity list and assumption of permanent status (App. 67a;

Court Ex. 1 § 43)—members of the Group of 500 would

have had the same expectation of ongoing employment as

(footnote continued from preceding page)

continued employment or reemployment”); Jd. § 5.311 (disabled

employee eligible “if the employee retains rights of reemployment”);

Id. § 5.305 (furloughees eligible if they “retain an employer-em-

ployee relationship and have a reasonable expectation of returning

to work.”).

atic

any incumbent United pilot and would have had the same

interest in bargaining over rules, rates of pay and working

conditions. Indeed, those who crossed the picket line on

May 17 plainly had a statutory interest in pilot working

conditions even though they did not perform any “work”

for United on that date. (App. 69a). Under the Nashville

court’s construction of § 1, Fifth, the Group of 500 thus

established an “employer-employee relationship” with United

on May 17, 1985.

4. In terms of the purposes underlying § 2, Fourth, the

fact that most Group of 500 members respected the picket

line cannot constitute a basis for denying employment

status as of May 17, 1985. The right to engage in a lawful

strike at the conclusion of the major dispute procedures

mandated by the RLA is an “integral” element of the

effective exercise of the § 2, Fourth right to engage in

collective bargaining. See Jacksonville Terminal, 394 US.

at 384-86; cf. Brotherhood of Ry. & S.S. Clerks v. Florida

E.C. Ry., 384 U.S. 238, 246-47 (1966). Thus, to effectuate

the purposes of § 2, Fourth, the protection from retaliation

for engaging in a lawful strike must at least extend to all

those who would otherwise be eligible to select and join

with a representative in engaging in collective bargaining.

In the district court, United claimed that the Group of

500 never formed an employer-employee relationship with

United because they never “reported to work” and had their

payroll forms signed by United. Yet the record established

that payroll forms for newly-hired strikebreakers were not

3 At a time when United placed student pilots on the payroll at

the commencement of their initial training, United never questioned

their employee status as of their first day of initial pilot training

under a statutory standard (“in the employ of any employer”)

indistinguishable from the “in the service” language of the RLA.

See Pomrening v. United Air Lines, Inc., 448 F.2d 609, 611 (7th

Cir. 1971) (construing 50 U.S.C. App. § 459).

signed until days or weeks after they were placed on the

payroll as of May 17. (Pl. Exs. 82, 83). Moreover, the

district court found that “[p]hysically reporting to work to

establish an employer-employee relationship is not a pre-

requisite to the right to strike on the first day of employ-

ment.” (App. 103a). Regardless of its justification in

other circumstances, a “report to work” requirement only

serves an anti-union purpose when applied in a strike be-

cause the sole distinction between those who report to work

and those who do not is whether they oppose or join the

strike. Thus, in NLRB v. New England Tank Indus., Inc.,

302 F.2d 273 (lst Cir. 1962), the First Circuit rejected

an employer’s contention that three individuals who had

been offered and accepted employment, but who engaged in

a strike on the day designated as their first day of work,

“had never actually effectuated an employer-employee re-

lationship with the company and therefore could not ‘strike’

against it.” Jd. at 277. Instead, the court held that “to

insist on a requirement that the three men physically report

to the job before going on strike would be little more than an

empty gesture.” /d. at 278.

The court of appeals recognized that New England Tank

“may at first glance seem to support the district court's

conclusion” (App. 46a), did not question that both the

RLA and NLRA protect strikers from employer coercion,

and did not challenge the New England Tank court's appli-

cation of this policy to a strike under the NLRA. (App.

46a-47a). Instead, it regarded “the plain and ordinary

meaning of the words” of § 1, Fifth to be conclusive in the

absence of “convincing evidence that Congress did not

intend that the RLA’s definition of employee meant what it

said.” (App. 47a-48a). As explained above, however,

both the legislative history of the RLA and the Sixth Cir-

cuit’s opinion in Nashville convincingly demonstrate that

the “supervision” and “performs any work” clauses of § 1,

Fifth do not refer to preconditions to being “in the service

of a carrier,” but plainly express, through statutory terms

of art, the distinction between employee status and inde-

pendent contractor or supervisory status. See supra pp. 8-

10. Given this legislative history and the purposes of § 2,

Fourth, the court of appeals should have followed the

First Circuit by holding that the Group of 500 had the

right to strike under the RLA on the date designated by

United as their first day of employment.

5. The district court both determined that the Group of

500 became employees on May 17, 1985, and further con-

cluded that, even prior to May 17, “United's belated attempt

to require members of the Group of 500 to cross a lawful

picket line as a condition of employment is unlawful under

the RLA.” (App. 103a). When considered in the context

of United’s overall program to break the pilot strike (App.

21a), which included its attempts to coerce the Group of

500 to become strikebreakers (App. 69a, 76a-79a),* the

district court’s decision that United’s threats prior to May 17

were unlawful effectuated the purposes of § 2, Fourth to

protec. the rights of employees, including incumbent pilots,

to engage in a lawful strike.

In reversing the district court, the court of appeals author-

ized carriers to obtain involuntary, coerced strikebreakers,

in addition to voluntary strike replacements, and thereby

created a powerful economic weapon for carriers to use

against incumbent employees. To recognize protected “em-

ployee” status only after work is performed during a strike,

but to allow permanent replacement status to attach at the

point the replacement accepts an offer of permanent employ-

* United did not hire the Group of 500 to serve as strikebreakers

(App. 68a), but had a separate program for hiring strike replace-

ments. (App. 107a).

ment,° gives carriers a judicially-created advantage in the

exercise of self-help without any statutory basis. See gener-

ally Jacksonville Terminal, 394 U.S. at 391-93.

While hiring voluntary permanent replacements may not

violate § 2, Fourth of the RLA or comparable NLRA pro-

visions, any additional employer measures to obtain strike-

breakers must be carefully scrutinized to determine the

employer's actual motivation and business purpose. (App.

17a-2la). See generally NLRB v. Erie Resistor Corp., 373

U.S. 221, 235-37 (1963). In this case, United’s anti-union

purposes and its lack of business justification for coercing

the Group of 500 to cross the picket line are firmly estab-

lished in the district court’s findings. (App. 70a-72a, 103a,

107a-108a). Accordingly, §§ 1, Fifth and 2, Fourth should

be construed to apply to carrier attempts to coerce new hires

to become strikebreakers in order to effectuate the right of

all “employees” to engage in a lawful strike.

Il. THE COURT OF APPEALS IMPERMISSIBLY EN-

GAGED IN ITS OWN FACTFINDING IN DIRECT

CONFLICT WITH RECENT DECISIONS OF THIS

COURT.

The Court has unequivocally held that Rule 52(a) of

the Federal Rules of Civil Procedure prohibits a federal

court of appeals from making “factual findings on its own.”

See Icicle Seafoods, Inc. v. Worthington, 106 S. Ct. 1527,

1530 (1986); Anderson v. City of Bessemer, 105 S. Ct.

1504, 1512-13 (1985). Particularly when a court of

appeals reverses a district court on the applicable legal

5In this case, the district court held that United’s 539 newly-

hired strikebreakers attained permanent replacement status at the

time they accepted United’s offer of employment, not when they

actually “performed work” for the carrier. (App. 127a). Only 64

of these strikebreakers were placed in line service during the strike;

272 had not even commenced initial pilot training before the strike

ended. (App. 127a-128a; Smith Aff. € 3-5).

standard, Rule 52(a) compels “a remand . . . unless the

record permits only one resolution of the factual issue,”

Pullman-Standard v. Swint, 456 U.S. 273, 292 (1974)

(emphasis added), just as it compels a remand where the

district court “failed to make findings of fact essential to

a proper resolution of the legal question,” /cicle Seafoods,

106 S. Ct. at 1530.

Even assuming the validity of the court of appeals’ new

legal standard for “employee” status under the RLA, the

court of appeals impermissibly found, as a matter of fact,

that the Group of 500 “never performed any work for United

nor did they ever submit to United’s supervision of them

in their work.” (App. 44a). The district court had no

occasion to and did not make factual findings concerning

the performance of “work” under United’s “supervision”

simply because facts concerning the Group of 500’s activi-

ties, while dispositive of the issue under the court of appeals’

new standard, were irrelevant to the district court’s focus

on United’s unconditional designation of May 17 as the

first day for permanent employment status. Moreover, the

district court never considered the status of any subgroup

within the Group of 500, based on their activities or other-

wise, at any point in time between the commencement of

initial training and May 17, 1985. Questions concerning

the Group of 500’s “particular activities” and “how [they]

spent their... time” are “question[s] of fact” for the district

court which are “essential to a proper resolution of the

legal question” as newly, defined by the court of appeals,

see Icicle Seafoods, 106 S. Ct. at 1530, but were not the

subject of factfinding pursuant to the district court’s legal

standard.

Moreover, the court of appeals relied on the absence of

any “dispute regarding the factual findings made by the

district court surrounding the Group of 500” to conclude

that the only “issue is whether, given these facts,” the Group

of 500 satisfied the legal standard for “employee” under

the RLA. (App. 42a) (emphasis added). This conclusion

utterly ignored the court’s obligation under Swint to review

the record as a whole—not merely the district court’s

factual findings—and to determine whether “the record

permits only one resolution of the factual issue” under a

newly-adopted legal standard. Swint, 456 U.S. at 292.

Even a cursory review of the record, however, compels

the conclusion that the court of appeals’ new legal standard

gives rise to numerous disputed issues of material fact which

can only be resolved by the district court.

For instance, the record thus far indicates that approxi-

mately 16 of the Group of 500 had “dates of hire” by

United prior to May 17 (Pl. Ex. 90), and that an undeter-

mined number of these were employed as Flight Officer

Training Instructors (“FOTI’s”) prior to that date. (Tr.

1484-85, 1487). The NMB has twice held that United’s

FOTI’s are “employees” under the RLA. United Air Lines,

Inc., 10 N.M.B. 458, 466-67 (1983); United Air Lines,

Inc., 9 N.M.B. 266, 280-81 (1982). Indeed, in a separate

lawsuit, the court explicitly found that five former United

FOTI’s who are members of the Group of 500 were

“employees” under the RLA at the time of the 1985 strike.

See Arthur v. United Air Lines, Inc., No. 85-Z-1835

(D. Colorado July 3, 1986) (order). Additional factfinding

is therefore required to determine the number of FOTI’s

in the Group of 500 employed by United prior to the strike,

and any other positions in which United employed Group

of 500 members prior to May 17.

Another group of approximately 10-12 of the Group

of 500 had both completed their refresher training and

performed their initial operating experience (“IOE”) prior

to May 17. (App. 69a-70a). Pilots performing their IOE

operated United aircraft under the supervision of a United

check airman (Tr. 1185-87) in accordance with Federal

Air Regulations which require that IOE “must be acquired

in flight during operations under this part.” 14 C.F.R.

§ 121.434(b)(3). Accordingly, the record plainly per-

mits the finding that this subgroup “performed work” under

United’s supervision; for this reason alone, the court of

appeals was obliged to remand this case to the district court

for new factfinding. See Icicle Seafoods, 106 S. Ct. at 1530;

Swint, 456 U.S. at 292.

In addition, the bulk of the Group of 500 had completed

their initial qualification training prior to May 17 and were

therefore “provisionally qualified to serve as United second

officers, lacking only their IOE to become fully qualified.”

(App. 66a-67a). Even assuming that the initial qualifica-

tion training did not constitute work under United’s super-

vision, the court of appeals erred in simply assuming that

the refresher training in May could not constitute work

under a carrier’s supervision. Engaging in recurrent, transi-

tion, upgrading, and requalification training is an integral

part of serving as a United pilot. See United Air Lines, Inc.,

9 N.M.B. at 276-79; United Air Lines, Inc., 4 N.M.B. 30,

35-36 (1965); see also 14 C.F.R. § 121.441 (mandating

annual proficiency training or checks). The extent to

which United’s “refresher” training was different from initial

qualification training or similar to the various types of re-

current and other training in which United pilots routinely

engage constitutes a question of fact which was not ad-

dressed by either the district court or the court of appeals

but is obviously “essential to a proper resolution of the

legal question” under the court of appeals’ interpretation

of § 1, Fifth. See Icicle Seafoods, 106 S. Ct. at 1530.

At the very least, the record in this case presents sub-

stantial factual issues material to the court of appeals’ new

legal standard which the district court never addressed.

Having reversed the district court on the legal standard.

“ ‘the Court of Appeals should not have resolved in the first

instance th[ese] factual dispute[s] which had not been con-

sidered in the District Court.’” See Swint, 456 U.S. at 292

(quoting Demarco v. United States, 415 U.S. 449, 450 n.*

(1974)); see also Icicle Seafoods, 106 S. Ct. at 1530

(same).

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,