Petition for Writ of Certiorari — Delta Air Lines, Inc. v. Association of Flight Attendants
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IN THE
4 —_ ;
Supreme Court of the United MSrares
OCTOBER TERM, 1989
DELTA AIR LINES, INC.,
\
Petitioner,
v.
ASSOCIATION OF FLIGHT ATTENDANTS, AFL-CIO,
Respondent.
On Petition For Writ Of Certiorari
To The United States Court Of Appeals
For The District Of Columbia Circuit
PETITION FOR WRIT OF CERTIORARI
Of Counsel:
ROBERT S. HARKEY
WALTER A. BRILL
DELTA AIR LINES, INC.
Law Department
Hartsfield Atlanta Int’]
~ Airport
Atlanta, Georgia 30320
(404) 765-2387
MICHAEL H. CAMPBELL
PAUL D. JONES
FORD & HARRISON
600 Peachtree at the Circle
Building
1275 Peachtree Street, N.E.
Atlanta, Georgia 30309
(404) 888-3800
*WILLIAM J. KILBERG
Scott A. KRUSE
BARUCH A. FELLNER
GIBSON, DUNN & CRUTCHER
Suite 900
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036
(202) 955-8500
Attorneys for Petitioner
*Counsel of Record
AEE EES 2 AGATE:
PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203
QUESTIONS PRESENTED
1. Whether, under the Railway Labor Act, a union
grievance which seeks damages for a claimed breach of a
collective bargaining agreement’s successor clause—pur-
portedly requiring a merged airline to recognize the union
as the representative of a minority group of employees—
after a merger—raises issues of employee representation
within the exclusive jurisdiction of the National Mediation
Board.
2. Whether the National Mediation Board’s decision ter-
minating the union representation certification of the ac-
quired carrier’s union, as of the date of the merger, renders
moot the union’s request to arbitrate a grievance involving
representation issues under a successor clause.
ii
LIST OF PARTIES
The names of all parties to the proceedings in the United
States Court of Appeals for the District of Columbia Cir-
cuit appear in the caption of the case in this Court, except
Western Air Lines, Inc. It should be noted, however, that
Western Air Lines, Inc., which was the original appellee
in these proceedings, ceased to exist when it was merged
into Delta Air Lines, Inc. on April 1, 1987.*
* Pursuant to Rule 28 of the Rules of this Court, the following is a
listing of all parent companies, subsidiaries (except wholly owned sub-
sidiaries) and affiliates of Delta Air Lines, Inc.: Atlantic Southeast
Airlines. Inc.; Comair, Inc.; Gatwick Handling, Ltd.; and SkyWest, Inc.
iil
TABLE OF CONTENTS
OPINIONS AND ORDERS BELOW .......................0005
Tah dinancenhasccqresancenccnsscccetscrssncsnccseses
STATEMENT OF THE CASE .............cccccccccsssssssceees
ee I TE nn. csscannneveanacannenaccececs
II. The Proceedings Below And In Related
Litigation Before This Court ...............000
REASONS FOR GRANTING THE WRIT ...................
SUMMARY OF REASONS FOR GRANTING THE
I URE AENIIA A LGAU AAS uA bineycapaennencessensissnsovsasecesncasesnesees
I. THE DECISION BELOW CREATES A CON-
FLICT AMONG THE COURTS OF APPEALS
REGARDING THE JURISDICTION OF THE
FEDERAL COURTS IN REPRESENTATION
DISPUTES UNDER THE RAILWAY LABOR
SET Sas sah ASN na Wha UapROnnSh SAssAasAnasancndsecencsnneceeeses
A. The NMB Has Exclusive Jurisdiction Of
All Employee Representation Disputes
Under The Railway Labor Act And Every
Other Court Of Appeals Decision On The
Issue Has Concluded That The Courts Do
Not Have Any Jurisdiction In Cases That
Raise Questions Of Representation, Re-
gardless Of The Context In Which They
5
B. The Present Litigation Invoives A Rep-
resentation Dispute Within The Exclusive
Jurisdiction Of The NMB, Regardless Of
RI I I ssi canncesanaerccnenccccancnncnens
C. The D.C. Circuit’s Decision In The In-
stant Case Conflicts With Every Other
Appellate Decision Regarding The Effect
Of Collective Bargaining Agreements On
Employee Representation Issues In Air-
line Mergers and Acquisitions ................
~)
12
Il.
Ill.
iv
D. The D.C. Circuit’s Attempt To Distin-
guish All The Other Circuit Decisions Is
Unavailing .........ccccssseseeeseeeeeseseneeeeeneeenenes
THE DECISION BELOW CREATES A CON-
FLICT BETWEEN THE D.C. CIRCUIT AND
THE NINTH CIRCUIT IN PARALLEL LITI-
GATION WITH RESPECT TO THIS SAME
MERGER REGARDING WHETHER A
UNION’S CLAIM FOR DAMAGES FOR AL-
LEGED BREACH OF A SUCCESSOR CLAUSE
HAS BEEN RENDERED MOOT ..........00000000
THIS CASE PRESENTS ISSUES OF NaA-
TIONAL POLICY CRITICAL TO THE VITAL
AIR AND RAIL TRANSPORTATION INDUS-
TIRES oscccosccssiccicsccssercnccccsscsscecsecvecessnenssecasonss
CONCLUSION .......ccccsscsscesencccceeeeseeseesescseeeseeecaeeoeenens
18
22
26
30
TABLE OF AUTHORITIES
Cases: } uge
Air Line Employees Association v. Republic Air-
lines, Inc., 798 F.2d 967 (7th Cir.), cert. denied,
CED Us WE CD ttcteneiinvicseonnbicniens 11,15,16,18,21
Air Line Pilots Association v. Texas Internatioral
Airlines, Inc., 656 F.2d 16 (2d Cir. 198}) ..... 11,21
Air Transport Employees v. Western Air Lines,
Inc., No. 86-8032 (C.D. Cal. Feb. 13, 1987) ... 4
Allegheny-Mohawk Merger Case, 59 C.A.B. 22
SUPUPEEE Scuemushncienaictilalatieadiana sh tact eae 3
Brotherhood of Railway and Steamship Clerks v.
United Air Lines, Inc., 325 F.2d 576 (6th Cir.
1963), cert. dismissed, 379 U.S. 26 (1964) ..... 11,17
Delta Air Lines, Inc. v. Association of Flight At-
tendants, 664 F. Supp. 158 (S.D.N.Y.), aff'd,
S36 F.2d 190 (2d Cir. 1968) .o.....ccccccccccccccccces, 19
Delta Air Lines, Inc. v. International Brotherhood
of Teamsters, 108 S. Ct. 58 (1987) oo... 6
Delta Air Lines/Western Air Lines, 14 N.M.B. 291
(ROUTE simmsibittdsidinietterse ee 5,10
Division No. 14, Order of Railroad Telegravhers v.
Leighty, 298 F.2d 17 (4th Cir.), cert. denied,
See Te Ee Gee eben 11
Flight Engineers’ International Association v.-East-
ern Air Lines, Inc., 359 F.2d 303 (2d Cir.
BOOT sennccchicinbicseditaiindabisahv oem ha naie ae meenaaar 1]
Flight Engineers’ International Association v. East-
ern Air Lines, Inc., 311 F.2d 745 (2d Cir.),
cert. denied, 373 U.S. 924 (1968) .........ccc. 1]
Flight Engineers’ International Association v. Pan
American World Airways, No. 87-6694, slip op.
(S.D.N-Y. July 5, 1989) .....cccccccccccscscccsseeees, 20-21
Galveston Wharves, 4 N.M.B. 200 (1962) .........00.... 24-25
General Committee of Adjustment v. Missouri-Kan-
sas-Teras Railroad Co., 320 U.S. 323 (1948) . )
Table of Authorities Continued ‘
Page
General Committee of Adjustment v. Southern Pa-
cific Co., S20 U.S. SBB (1GEB) ....rccccccccccrcssesesss )
Gondeck v. Pan American World Airways, Inc., 382
GAs SEP CREED wrcdhinasecannedlacsuniatiaisbtaeneneaiiicas 23
IBTCHWA, Local Union No. 2702 v. Western Air
Lines, Inc., 813 F.2d 1359 (9th Cir.), vacated
and remanded, 108 S. Ct. 53 (1987) ........00... 4-5,23
IBTCHWA, Local Union No. 2702 v. Western Air
Lines, Inc., 854 F.2d 1178 (9th Cir. 1988) .... 6,22
Independent Union of Flight Attendants v. Pa
American World Airways, 836 F.2d 130 (2d
RAM RIRIBID csscccisnacenecnelecessnenennaseiaatdeihesonel 11,19,20,21
International Association of Machinists v. Northeast
Airlines, Inc., 5386 F.2d 975 (1st Cir.), cert.
dented, 429 U.S. 961 (1976) .....cccccccccsscscssssssees 11
International Brotherhood of Teamsters v. Texas In-
ternational Airlines, Inc., 717 F.2d 157 (5th
JUG: IPEDS issok casancctnnubcesenchaeemadapeanienaeeie 11,16,17,19,28
International Brotherhood of Teamsters v. Western
Air Lines, Inc., No. 86-7921 (C.D. Cal. Feb.
BG, .SINOTE sansssinwanssnseaeiaanaabelnnanena 4
International Typographical Union v. NLRB, 365
U.S. 705, rehearing denied, 366 U.S. 941
FRO D ‘wikckagusarsecscanasnsassndllagiesbanancaabiematataacnile 23
Maryland v. United States, 381 U.S. 41 (1965) .... 23
Midway Airlines, 14 N.M.B. 447 (1987) 0.0.0.0... 25,26
New York Central Railway Co., 1 N.M.B. 197
DEED sccsmcomitioncassaeee ETE STON 27
Northwest Airlines, Inc., 18 N.M.B. 399 (1986) .... 10
Pennsylvania Railroad Co., 1 N.M.B. 23 (1987) ... 9
Republic Airlines, Inc., 8 N.M.B. 49 (1980) .......... 10,27
Seaboard Coast Line Railroad Co., 6 N.M.B. 63
ROT) cnsccsccsscacsvcnessecisaceinleneieieneeeelaeenaes 24,27
Switchmen’s Union of North America v. National
Mediation Board, 320 U.S. 297 (1948) wo... N)
vii
Table of Authorities Continued
Page
Trans World Airlines/Ozark Airlines, 14 N.M.B.
ee CRs By SE Sihniidenisskctheneciaineaninniionninses 10
Western Air Lines, Inc. v. International Brother-
hood of Teamsters, 480 U.S. 1301 (1987) ... 5,9,14-15
Federal Statutes and Rules:
Railway Labor Act, 45 U.S.C. §§ 151-88 ............. passim
Se ee IIIT Uniiciiccneiascnccbinbdnhubbnnbceasleisiinbeedddanens 1
Ps Se es 0e | MII sesnistntenghacansetahensesecenenns tnasneds 13
Miscellaneous:
Procedures for Handling Representation Issues Re-
sulting From Mergers, Acquisitions or Consol-
idation in the Airline Industry, 14 N.M.B. 388
CRIDUT ‘ivenisapesbishielsncleoniannatiaanansansunnnenaniataes 10
are
= ,
=~ in 7 -
ony coer es ae
nea ales Te Or ake ae
Tie ; . y , : als
PETITION FOR WRIT OF CERTIORARI
Petitioner Delta Air Lines, Inc. respectfully prays that
a writ of certiorari issue to review the opinion and judg-
ment of the United States Court of Appeals for the Dis-
trict of Columbia Circuit (“D.C. Circuit”), entered in the
proceedings below on July 18, 1989.
OPINIONS AND ORDERS BELOW
The opinion of the D.C. Circuit, entered on July 18,
1989, is reported at 879 F.2d 906, and is reproduced in
Appendix A. Copies of that court’s preliminary orders of
June 6, 1988, and March 31, 1987, are unreported and are
reproduced in Appendices B and C. The final opinion and
judgment of the D.C. Circuit reversed the indgment of the
United States District Court for the District of Columbia.
A copy of the order and opinion of the district court, which
is reported at 662 F. Supp. 1, is reproduced in Appendix
D.
JURISDICTION
The opinion and judgment of the D.C. Circuit were ren-
dered in this case on July 18, 1989. This Petition is filed
within ninety days of that date. This Court’s jurisdiction
is invoked pursuant to 28 U.S.C. § 1254(1).
STATUTE INVOLVED
The statute involved is the Railway Labor Act, 45 U.S.C.
§§ 151-88, specifically §§ 152, Fourth and Ninth, and 181.
Those provisions are reproduced in Appendix N.
STATEMENT OF THE CASE
I. The Relevant Facts
This case arises from a labor dispute involving the 1987
merger of Western Air Lines, Inc. (‘‘Western’’) into Delta
Air Lines. Inc. (‘Delta’). Respondent Association of Flight
Attendants (“AFA”), which represented Western's flight
tho
attendants prior to the merger, filed suit in the United
States District Court for the District of Columbia seeking
an order compelling Western to arbitrate AFA’s grievance
claim that Western was required to bind Delta to AFA’s
collective bargaining agreement with Western under the
successor clause of that union agreement. AFA’s grievance
alleged that Western violated the successor clause by fail-
ing to secure Delta’s agreement to be bound by AFA’s
union agreement and to recognize the AFA after the
merger was completed. Western refused to arbitrate AFA’s
grievance on the grounds that it raised employee repre-
sentation issues within the exclusive jurisdiction of the
National Mediation Board (‘‘NMB’’).
Prior to the merger, Delta employed more than three
times as many flight attendants as Western. Those Delta
flight attendants have opted to have no collective bar-
gaining representative. Thus, after the merger, a large
majority (greater than 75%) of the flight attendant craft
or class was made up of original Delta employees who
have never chosen to be represented by a union.
Pursuant to a September 1986 merger agreement, Delta
acquired Western on December 18, 1986, at which time
Western become a wholly owned subsidiary of Delta, op-
erating as a separate carrier. On April 1, 1987, Western
was legally and operationally merged into Delta and ceased
to exist as a separate entity. The merger agreement re-
quired Western to honor its collective bargaining agree-
ments as long as it operated as a separate carrier.
As Judge Gesell found in this case, ‘‘No layoffs [of West-
ern employees] are contemplated, either before or after
the merger.’’ App D, 29a, 662 F. Supp., at 2. Delta offered
postmerger jobs to all flight attendants without requiring
any of them to move. Since the wages and benefits paid
by Delta were significantly higher than Western’s, Delta
gave substantial pay increases to most Western emplovees
ad the tig "diel Hight attendants. Jd., at 2¥a.
2 F. Supp.,
In the merger agreement, Delta also voluntarily agreed
to provide Western employees with significant labor pro-
tective provisions (‘‘LPP’s’’) at least as favorable as the
standard LPP’s imposed by the Civil Aeronautics Board
(‘‘CAB”’) in the Allegheny-Mohawk Merger Case, 59 C.A.B.
22 (1971), which the Department of Transportation ceased
imposing after airline deregulation. App. D, 29a, 662 F.
Supp., at 2 n.2. The LPP’s include a fair and equitable
integration of seniority lists. In accordance with the LPP’s,
the former Western employees represented by the AFA
have been integrated with the original Delta employees.
Il. The Proceedings Below And In Related Litigation
Before This Court
AFA filed this action on January 8, 1987, to compel
arbitration of a labor grievance. AFA contended that un-
der the labor agreement’s successor clause Western must
require Delta to be bound to AFA’s labor contract and
recognize AFA as the representative of Western’s flight
attendants after the Delta-Western merger. AFA charac-
terized this as a “minor dispute”’ under the Railway Labor
Act, involving contract interpretation which should be ar-
bitrated before Western’s System Board of Adjustment.
Western refused to arbitrate on grounds that the grievance
actually raised a representation dispute that lay within the
exclusive jurisdiction of the NMB.
On February 20, 1987, Judge Gesell granted summary
judgment for Western, finding that this dispute was within
the NMB’s exclusive jurisdiction:
Where both representational issues and ‘“‘minor”’ dis-
putes which arguably may not involve representational
issues are involved in a single dispute, it is not the
role of a court to attempt to define such minor issues
and require they be segregated for evaluation by the
Svstem Board. As a practical matter the issues inev-
itably overlap, and any attempt to divide jurisdiction
between the System Board and the National Media-
tion Board would defeat the purposes of the RLA....
For AFA to characterize this as a minor dispute
wholly within the province of the System Board ig-
nores the reality of the situation and constitutes an
attempt to circumvent procedures clearly mandated
by Congress for resolution of disputes by the National
Mediation Board under the RLA.
App. D, 31la-32a, 662 F. Supp., at 3 (footnote and citations
omitted). AFA then asked the D.C. Circuit for an injunc-
tion to compel arbitration pending appeal, which that court
denied on March 31, 1987. App. C, 26a.
On June 29, 1987, the D.C. Circuit granted AFA’s un-
opposed motion for stay pending this Court’s disposition
of Delta’s petition for certiorari in the related litigation
initiated by two other Western unions in the Ninth Circuit.
AFA’s motion acknowledged that the Ninth Circuit liti-
gation ‘‘grows out of the same transaction as in the instant
case,” and that it “raises the same legal issue as is posed
here, namely, the arbitrability and enforceability of a suc-
cessorship provision in a collective bargaining agreement
under the Railway Labor Act....’’ AFA Motion to Stay
Briefing Schedule, at 1-2 (“Motion for Stay’’).
In the Ninth Circuit litigation, two other Western unions
filed actions in the Central District of California similar
to AFA’s. They sought to compel arbitration of grievances
over the successor provisions in their labor agreements,
encompassing damages and other relief, the same order
sought by AFA here. Both actions were dismissed by the
California district court on the same jurisdictional grounds
cited by Judge Gesell in the instant case. See International
Brotherhood of Teamsters v. Western Air Lines, Inc., No.
86-7921 (C.D. Cal. Feb. 18, 1987) (App. E, 34a-36a); Air
Transport Employees v. Western Air Lines, Inc., No. 86-
8032 (C.D. Cal. Feb. 18, 1987) (App. F, 37a-38a).
On March 31, 1987, the Ninth Circuit reversed both
decisions and issued an injunction compelling arbitration
of the unions’ grievances and enjoining the merger of Delta
and Western pending arbitration. JBTCHWA, Local Union
No. 2702 v. Western Air Lines, Inc., 813 F.2d 1859 (9th
Cir.) (“JIBTCHWA TI’), vacated and remanded, 108 S. Ct.
53 (1987). Western and Delta immediately sought an emer-
gency stay of the Ninth Circuit’s order and injunction. On
April 1, 1987, Justice O’Connor, Circuit Justice. granted
the stay (App. G, 39a). On April 2, 1987, Justice O’Connor
issued a written opinion declaring that:
The reasoning of every other Court of Appeals that
has ruled on the issue raised before the Ninth Circuit
casts grave doubt on the validity of the Ninth Circuit’s
action in this case. The great weight of the case law
supports the proposition that disputes as to the effect
of collective bargaining agreements on representation
in an airline merger situation are representation dis-
putes within the exclusive jurisdiction of the National
Mediation Board.
Western Air Lines v. International Brotherhood of Teams-
ters, 480 U.S. 1301, 1805 (1987) (‘‘Western v. Teamsters’’)
(App. H, 44a-45a). Justice O’Connor reviewed the same
“overwhelming and well-developed case law”’ earlier cited
by Judge Gesell in the instant case, id., at 45a, 480 U.S.,
at 1306, and commented favorably upon Judge Gesell’s
analysis and the D.C. Circuit’s denial of AFA’s request
for an injunction pending appeal. Jd., at 46a, 480 U.S., at
1306-07. On April 6, 1987, this Court, without dissent,
denied the unions’ emergency applications to vacate Justice
O’Connor’s stay. 481 U.S. 1002 (1987). Delta then filed a
timely certiorari petition, which was pending before this
Court at the time of AFA’s Motion for Stay in the instant
case.
While that certiorari petition was pending and the in-
stant case was stayed before the D.C. Circuit, on July 9,
1987, the National Mediation Board (‘‘NMB’’) issued its
decision revoking the employee representation certifica-
tions of all former Western unions, including AFA’s, ef-
fective retroactively to April 1, 1987. Delta Air Lines/
Western Air Lines, 14 N.M.B. 291 (‘‘Delta/Western’’) (1987)
(App. I, 50a-62a). On October 5, 1987, after the NMB’s
termination of the former Western unions’ certifications,
this Court, again without dissent, granted Delta’s petition
for certiorari, vacated the Ninth Circuit’s judgment and
remanded those cases to the Ninth Circuit to consider the
question of mootness. Delta Air Lines, Inc. v. Interna-
tional Brotherhood of Teamsters, 108 S. Ct. 53 (1987) (App.
J, 63a). On August 18, 1988, the Ninth Circuit dismissed
the actions as moot (including the damages claims) on the
basis that ‘‘none of the relief sought in the original com-
plaint is now available.’ IBTCHWA, Local No. 2702 v.
Western Air Lines, Inc., 854 F.2d 1178 (9th Cir. Aug. 18,
1988) (“JBTCHWA IT’) (App. K, 64a).
Meanwhile, following this Court’s remand to the Ninth
Circuit, Delta moved the D.C. Circuit to dismiss the instant
case on grounds of mootness, arguing that the decision of
the NMB revoking AFA’s certification supplanted any pos-
sible award of an arbitrator. Denying the motion, on June
6, 1988, the D.C. Circuit held the following:
Although Appellant’s claim based on any right of con-
tinued representation is moot, it is not clear whether
an arbitrator could award damages for breach of the
collective bargaining agreement. It is
FURTHER ORDERED that the parties limit their
briefs to the issue of whether an arbitrator could
award damages to Appellant if the arbitrator finds
that Appellee breached the collective bargaining
agreement.
App. B, 25a (emphasis added).
On July 18, 1989, the D.C. Circuit issued a decision
reversing the district court determination in favor of Delta
and remanding the case to the district court to order ar-
bitration of AFA’s damages claim. The D.C. Circuit con-
curred with the Ninth Circuit’s finding of mootness as to
all of AFA’s claims except those for damages. App. A,
6a-7a, 879 F.2d, at 909. The D.C. Circuit found that the
NMB's action had not mooted AFA’s claims for damages,
id.. at Ya, 879 F.2d, at 910, and that the NMB’s exclusive
jurisdiction over representation disputes did not deprive
~)
the district court of authority to order arbitration of the
damages claims. Jd., at 23a-24a, 879 F.2d, at 917.
Delta moved for a stay of the D.C. Circuit’s mandate
pending certiorari so that the important legal issues could
be resolved by this Court before the arbitration which
Delta contends should not proceed. AFA concurred in the
motion, and the D.C. Circuit granted it. (App. L, 66a)
REASONS FOR GRANTING THE WRIT
SUMMARY OF REASONS FOR GRANTING THE WRIT
The D.C. Circuit concluded that the court has jurisdic-
tion to order arbitration of AFA’s damages claim. The
D.C. Circuit’s decision conflicts with a long line of other
circuit court decisions, all of which have concluded that
courts (and arbitrators) do not have any jurisdiction in
cases that involve representation issues and that such mat-
ters must be left to the exclusive jurisdiction of the Na-
tional Mediation Board under the Railway Labor Act. These
cases have so held in a variety of situations, including
some which are factually as well as legally indistinguish-
able from the instant case. The D.C. Circuit reaches its
conflicting result because it incorrectly tries to separate
the damages remedy that AFA now seeks from AFA’s
underlying claim of a contract violation, which necessarily
involves a representation dispute. In order to award dam-
ages or any relief, an arbitrator would first have to make
a finding on the representation issues involved in the con-
tract violation alleged by AFA, i.e, that the successor
clause of the AFA/Western contract entitled AFA to be
recognized by Delta as the representative of former West-
ern flight attendants. Such a finding by an arbitrator,
however, would assume that the arbitrator had the un-
derlying jurisdiction to determine the rights and obliga-
tions of the parties with respect to representation. Any
such finding would invade the exclusive jurisdiction of the
NMB and would be directly at odds with the NMB’s de-
cision that AFA’s right to represent Western’s flight at-
tendants was extinguished on April 1, 1987.
Further, the D.C. Circuit decision conflicts with the
Ninth Circuit’s decision in the parallel litigation with re-
spect to this same Delta-Western merger. The D.C. Circuit
found that the NMB’s decision terminating the represen-
tation certifications of all of Western’s former unions did
not render moot the damages claims of the AFA under
its successor clause, but the Ninth Circuit ruled that those
same damages claims by two other unions were moot. The
D.C. Circuit acknowledged this conflict. Thus, Delta is sub-
ject to two totally inconsistent rulings of law on the same
issue in the same merger. It was this Court that correctly
raised the mootness issue, vacating and remanding the
parallel case to the Ninth Circuit to consider that question.
The resolution of these conflicts are of vital national
importance to our critical air and rail transportation in-
dustries. Only this Court can resolve these conflicts and
put right again this previously settled area of labor law.
I. THE DECISION BELOW CREATES A CONFLICT
AMONG THE COURTS OF APPEALS REGARDING
THE JURISDICTION OF THE FEDERAL COURTS
IN REPRESENTATION DISPUTES UNDER THE
RAILWAY LABOR ACT
A. The NMB Has Exclusive Jurisdiction Of All Em-
ployee Representation Disputes Under The Rail-
way Labor Act And Every Other Court Of Appeals
Decision On The Issue Has Concluded That The
Courts Do Not Have Any Jurisdiction In Cases
That Raise Questions Of Representation, Regard-
less Of The Context In Which They Arise
The Railway Labor Act ’(““RLA’’), 45 U.S.C. §§ 151-63,
regulates labor relations of the nation’s railroads and,
through Title II, 45 U.S.C. §§ 181-88, air carriers. Justice
O'Connor, in related litigation arising out of this same
Delta-Western merger, has summarized the types of dis-
putes cognizable under the RLA as follows:
The [Railway Labor] Act defines three classes of labor
disputes and establishes a different dispute resolution
procedure for each. ‘‘Minor’’ disputes involve the ap-
plication or interpretation of an existing collective-
bargaining agreement. Minor disputes are subject to
arbitration by a System Board of Adjustment. 45
U.S.C. §184....
‘Major’ disputes involve the formation of collective-
bargaining agreements, and the resolution of such dis-
putes is governed by §6 of the Act, 45 U.S.C. §§ 156,
181. ‘Representation’ disputes involve defining the
bargaining unit and determining the employee rep-
resentative for collective bargaining. Under § 2, Ninth
of the Act, the National Mediation Board has exclu-
Sive jurisdiction over representation disputes. 45
U.S.C. §§ 152, 181.
App. H, 41a-42a, 480 U.S., at 1302-03.
The NMB has exclusive jurisdiction of all disputes re-
garding employee representation. 45 U.S.C. § 152, Ninth.
This Court has expressly held that the sweeping jurisdic-
tion of the NMB over representation disputes is exclusive.
See General Committee of Adjustment v. Southern Pacific
Co., 8320 U.S. 338 (1943); General Committee of Adjustment
v. Muissouri-Kansas-Texas Railroad Co., 320 U.S. 3238
(1943); Switchmen’s Union of North America v. National
Mediation Board, 320 U.S. 297 (1948).
The RLA contemplates that employees will be repre-
sented on a carrier-wide basis through crafts or classes of
employees and that the majority of the employees in each
craft or class may select a bargaining representative. 45
U.S.C. § 152, Fourth. The NMB has held on numerous
occasions that it has no authority to split a craft or class
or fragment a carrier’s labor force:
The Railway Labor Act does not authorize the Na-
tional Mediation Board to certify representatives for
small groups of employees arbitrarily selected. Rep-
resentatives may be designated and authorized only
for the whole of a craft or class employed by a carrier.
Pennsylvania Railroad Co., 1 N.M.B. 28, 24 (1937) (em-
phasis in original).
10
Applying this principle, the NMB has specifically held
that upon the merger of two airlines, the representation
certifications of unions of the acquired airline whose em-
ployees will constitute only a minority of the combined
employee groups after the merger, are extinguished by
operation of law at the time of the merger. See Northwest
Airlines, Inc., 138 N.M.B. 399 (1986); Republic Airlines,
Inc., 8 N.M.B. 49 (1980). More recently, in Trans World
Airlines/Ozark Airlines, 14 N.M.B. 218 (““TWA’’’ (Apr. 10,
1987), the NMB reaffirmed these principles, but indicated
that representation certifications are not formally extin-
guished as a result of a merger untii the NMB so rules.
Pursuant to these principles, the NMB revoked the rep-
resentation certifications of all former Western unions, in-
cluding AFA, retroactive to the April 1, 1987 merger date.
Delta/Western, 14 N.M.B. 291 (1987) (See App. I, 50a).
The NMB also said that in view of the increasing num-
ber of mergers under deregulation it would develop new
procedures for handling representation matters resulting
from mergers in the near future. TWA, 14 N.M.B., at 241.
Subsequently, on July 31, 1987, the NMB issued its Pro-
cedures for Handling Representation Issues Resulting From
Mergers, Acquisitions or Consolidation in the Arrline In-
dustry, 14 N.M.B. 388 (1987) (‘‘Merger Procedures’’), for-
malizing its procedures for exercising its exclusive
jurisdiction over representation issues in airline mergers.
Carriers are now required to notify the NMB at the same
time that they seek merger approval from the Department
of Transportation or when they subsequently decide to
merge after one has gained control] of the other. Jd., at
390, 393. Thus, the NMB has demonstrated its intent,
ability, and authority to resolve any and all representation
disputes arising from airline mergers. Reemphasizing the
NMB’s statutory role in such matters, the Merger Proce-
dures reiterate that ‘‘the NMB alone is vested with final
decision-making authority over representation issues.”’ /d.,
at 388; see also id., at 389.
The courts have long held that under the RLA courts
and arbitrators have no jurisdiction over representation
1]
disputes, regardless of the context in which they arise, or
the relief sought (including damages). Prior to this liti-
gation over the Delta/Western merger, an unbroken line
of appellate decisions established that the courts must look
beyond the superficial form of a complaint to determine
whether, as here, it masks an underlying representation
dispute. If representation issues are involved, the courts
are required to dismiss the complaint for lack of jurisdic-
tion. See, e.g., Independent Union of Flight Attendants v.
Pan American World Airways, 836 F.2d 1380 (2d Cir. 1988)
(per curiam) (seeking arbitration of a claim that union’s
contract governed work at another acquired airline); Air
Line Employees Association v. Republic Airlines, Inc., 798
F.2d 967, 968 (7th Cir.) (per curiam), cert. denied, 479
U.S. 962 (1986) (pre-merger action by union from smaller
merging carrier for expedited arbitration of grievance over
contract violation); Jnternational Brotherhood of Teamsters
v. Texas International Airlines, Inc., 717 F.2d 157, 158
(Sth Cir. 1983) (seeking declaration that union’s contract
survived a merger); Air Line Pilots Association v. Texas
International Airlines, Inc., 656 F.2d 16, 19 (2d Cir. 1981)
(action to enforce union contract on carrier’s newly es-
tablished subsidiary); International Association of Machin-
ists v. Northeast Airlines, Inc., 5386 F.2d 975, 977 (1st
Cir.), cert. denied, 429 U.S. 961 (1976) (seeking negotiation
of employees’ post-merger rights); Flight Engineers Inter-
national Association v. Eastern Air Lines, Inc., 359 F.2d
303, 307 (2d Cir. 1966) (action seeking reinstatement of
replaced striking employees “‘flew in the teeth’’ of NMB’s
certification of a different union representing the replace-
ment employees); Brotherhood of Railway and Steamship
Clerks v. United Air Lines, Inc., 325 F.2d 576, 579 (6th
Cir. 1963), cert. dismissed, 379 U.S. 26 (1964) (seeking
declaration that union’s contract with successor provision
’ survived a merger); Flight Engineers’ International As-
sociation v. Eastern Air Lines, Inc., 311 F.2d 745, 746
(2d Cir.), cert. denied, 373 U.S. 924 (1963) (seeking in-
junction requiring airline to bargain); Division No. 14, Or-
der of Railroad Telegraphers v. Leighty, 298 F.2d 17 (4th
12
Cir.), cert. denied, 369 U.S. 885 (1962) (seeking to enjoin
agreement between railroad and parent union). In all of
these cases, the courts found that the union’s action raised
representation issues and dismissed for lack of jurisdiction.
Nothing in those decisions indicated that their outcome
was affected by the form of relief sought by the union.
B. The Present Litigation Involves A Representation
Dispute Within The Exclusive Jurisdiction Of The
NMB, Regardless Of The Relief Sought
AFA’s action seeking to arbitrate contractual grievances
related to its alleged right to maintain its representative
status is simply an attempt to evade the NMB’s exclusive
jurisdiction over representation questions. AFA claimed
that the successor provisions contained in its collective
bargaining agreement required Western to bind Delta to
recognize AFA as the bargaining representative of the
former Western flight attendants and to honor the West-
ern/AFA labor contract after the merger. Since the D.C.
Circuit’s initial ruling that “‘[a]lthough [AFA’s] claim based
on any right of continued representation is moot, it is not
clear whether an arbitrator could award damages. . . if the
arbitrator finds that Appellee breached the collective bar-
gaining agreement” (App. B, 25a), AFA now seeks an
arbitration limited to damages relief.
The D.C. Circuit decision would allow the AFA to take
its damages request to arbitration. The court below would
distinguish between that damages remedy and the under-
lying representation claim:
AFA’s claims for injunctive relief are now moot, and
no resolution of the remaining damage claim could
have any effect upon either the Delta-Western merger
or the representation of Delta’s employees. This dis-
pute is over a sum of money: Delta has it, and AFA
wants it; no other person, and no transaction, is af-
fected by which of them ends up with it.
App. A, 18a, 879 F.2d, at 914.
a
13
This puts the cart before the horse. One must look at
the underlying claim before one can look at the remedy.
A court does not have subject matter jurisdiction over a
claim that one party desires another’s money. Such a claim,
without a proper cause of action as a predicate, would be
dismissed for failure to state a claim upon which relief
may be granted, pursuant to Rule 12(b\X6) of the Federai
Rules of Civil Procedure.
In order to invoke a court’s subject matter jurisdiction,
a party must plead each of the elements of a cause of
action that is within the court’s jurisdiction. A cause of
action founded upon breach of contract comprises four
elements: a duty, a breach of the duty, proximate cause,
and damages or injunctive relief. Similarly, a union’s claim
that it seeks a carrier’s money would not, by itself, be
subject to arbitration under the Railway Labor Act. The
union must assert as a necessary element of its cause of
action that the carrier had a duty to take some action,
that it breached that duty, and that an arbitrator has
jurisdiction to determine those issues. The remedy of dam-
ages is inextricably intertwined with the asserted duty and
breach. a
Here, AFA alleged that Western had a duty to bind a
successor airline—in this case Delta—to recognize AF A's
status as collective bargaining representative and its labor
contract (or, under the alternate formulation of AFA's
argument stated by the D.C. Circuit, that the merger was
prohibited because of Delta’s failure to agree to such rec-
ognition). Western (and Delta) disputed AFA’s claim. That
alleged duty is the subject matter of this dispute and of
AFA’s cause of action—the subject matter is not whether
AFA can have some of Delta’s money. The latter issue
necessarily depends upon the former. That is, absent a
finding of the alleged duty and a breach thereof, AFA
would have no basis for any relief, including damages.
Any finding, whether by an arbitrator or a court, that
AFA had a right to continued recognition would invade
the NMB’s exclusive jurisdiction over representation dis-
a
14
putes. One cannot separate the remedy which AFA seeks
from its underlying representation claim, as the D.C. Cir-
cuit decision does.
The D.C. Circuit dismisses this argument by saying that,
inasmuch as the merger was completed and the NMB al-
ready has ruled on the representation issues, a damage
award could not interfere with or affect those matters.
But the issue of subject matter jurisdiction does not de-
pend upon whether a remedy can be devised that arguably
wili not “‘interfere’’ with the transaction. The issue is
whether the adjudicator, be it a court or an arbitrator,
has jurisdiction to determine the rights and obligations of
the parties with respect to the disputed subject matter:
here the asserted duty of Western to bind Delta to rec-
ognize the AFA contract and AFA as employee repre-
sentative.
C. The D.C. Circuit’s Decision In The Instant Case
Conflicts With Every Other Appellate Decision Re-
garding The Effect Of Collective Bargaining
Agreements On Employee Representation Issues
In Airline Mergers and Acquisitions
In reviewing the Ninth Circuit’s finding of jurisdiction
and granting of an injunction compelling Western to ar-
bitrate in the parallel litigation, Justice O’Connor discussed
the long line of cases cited in Section A above:
The reasoning of every other Court of Appeals that
has ruled on the issue raised before the Ninth Circuit
casts grave doubt on the validity of the Ninth Circuit's
action in this case. The great weight of.the case law
supports the proposition that disputes as to the effect
of collective-bargaining agreements on representation
in an airline merger situation are representation dis-
putes within the exclusive jurisdiction of the National
Mediation Board.
*. «= *
The Ninth Circuit’s divergence from this line of Court
of Appeals decisions leads me to find it very likely
15
that at least four Justices would vote to grant
certiorari, and that the applicant is likely to prevail
on the merits.
App H, 44a, 46a, 480 U.S., at 1305, 1307. This Court
subsequently granted certiorari, vacated the Ninth Cir-
cuit’s decision and remanded to consider the question of
mootness. App. J, 68a, 108 S. Ct. 53 (1987).
The Courts of Appeais of five circuits, the First, Second,
Fifth, Sixth and Seventh, have ruled that the courts have
no jurisdiction in actions to enforce union contracts in
connection with airline mergers and acquisitions because
such actions inevitably raise representation questions. The -
D.C. Circuit decision conflicts with these other circuits.
The Seventh Circuit’s decision in Air Line Employees
Association v. Republic Airlines, Inc., 798 F.2d 967 (7th
Cir.) (per curiam), cert. denied, 479 U.S. 962 (1986)
(‘ALEA v. Republic’), is especially instructive as its facts
are indistinguishable from those here. In anticipation of a
merger with Republic Airlines, Northwest Airlines agreed
to recognize two of its own unions as representatives of
the combined workforce after the merger was to take place.
Before this “‘transition agreement” became effective, one
of Republic’s unions, the Air Line Employees Association
(“ALEA”’), brought an action prior to the merger against
Republic anc Northwest challenging the transition agree-
ment as a breach of ALEA’s labor contract with Republic.
ALEA’s complaint sought the same relief AFA sought
here, ‘‘an order compelling expedited arbitration of its
grievance challenging defendants’ contract violations and
preserving the status quo pending issuance of the arbitra-
tor’s decision.” Jd., at 968.’
‘ AFA’s Complaint sought the same relief to ‘‘[o}rder Western
to submit on an expedited basis to the jurisdiction of the System
Board of Adjustment, sitting with a referee in accordance with
the 1984 Agreement, to resolve the parties’ dispute over the
Company's asserted breach of Section 1(C)” and “‘if expedited
arbitration before the System Board is not ordered, issue a
0 Ee
|
16
Thus, the Seventh Circuit had before it all of the same
elements of the instant case, i.e., a premerger contract
action brought by the union against the premerger carrier
to compel arbitration of a claim that the carrier violated
the union’s contract in the merger by not recognizing that
union. The union there, like AFA here, sought te compel
arbitration of an alleged contract violation, in which ar-
bitration the union would be entitled to any appropriate
relief, including damages. Nevertheless, unlike the D.C.
Circuit, the Seventh Circuit affirmed the dismissal of
ALEA’s complaint for lack of jurisdiction:
[T]he district judge’s decision was in conformity with—
as he put it—‘‘the overwhelming and well-developed
case law addressing issues similar to those presented
in the instant complaint.’”’ ... [W]e find no reason to
depart from the consistent and well-considered anal-
ysis of our colleagues in other circuits.... [E]ven
though the complaint was couched in terms of enforcing
the collective bargaining agreement, the dispute was
basically a representational dispute and therefore com-
mitted to the sole jurisdiction of the NMB.
Id. (footnote and citation omitted) (emphasis added).
To the same effect is the Fifth Circuit’s decision in
International Brotherhood of Teamsters v. Texas Interna-
tional Airlines, Inc., 717 F.2d 157 (5th Cir. 1983). After
Texas International merged with the larger Continental
Air Lines, Texas International’s 1,800 Teamsters found
themselves subsumed in an unorganized unit of 4,000 Con-
tinental employees, and Continental refused to recognize
the Teamsters or their premerger agreement. Although
preliminary injunction to preserve the status quo pending arbi-
tration by the System Board of the parties’ contractual dispute.”’
(AFA Complaint, at 10, requests for relief). It should be noted
that a complaint seeking an order compelling arbitration typically
would not specify the nature of the relief sought in the arbi-
tration. It is understood that, if the arbitrator has jurisdiction
over a grievance, he may issue an order in the nature of in-
junctive relief, he may award damages, or both.
17
the Teamsters’ declaratory action, like AFA’s suit here,
purported only to seek enforcement of the union’s con-
tract, the Fifth Circuit nevertheless held that the action
for contract enforcement hinged on the underlying rep-
resentation dispute. Jd., at 161. The court found as a con-
sequence that it had no jurisdiction to intervene:
Given the Mediation Board’s undeniable sole jurisdic-
tion over representation matters, we infer from the
practical problems of divided jurisdiction a congres-
sional intention to allow that agency alone to consider
the post-merger problems that arise from existing col-
lective bargaining agreements.
Id., at 164.
Since Brotherhood of Railway and Steamship Clerks v.
United Air Lines, Inc., 325 F.2d 576 (6th Cir. 1963), cert.
dismissed, 379 U.S. 26 (1964), the courts have recognized
that placing a representation issue in the form of a con-
tract dispute cannot oust the NMB of its exclusive juris-
diction. There the union sought to enforce its premerger
contract, which contained a successor clause, with United's
merger partner. The Sixth Circuit affirmed lack of juris-
diction:
[A]lthough the suit is cast in the form of an action
under the law of contracts, it in fact involves a rep-
resentation dispute. Even though an action is brought
as one sounding in contract the courts have no juris-
diction “where ‘validity’ of the contract depends upon
the merits of a representation dispute.”
325 F.2d, at 579 (citation omitted). ©
The same principles of these cases apply here. The D.C.
Circuit's decision compelling arbitration of AFA’s damages
claim would authorize and require an arbitrator, in order
to award damages, to determine first whether under the
successor clause of the union’s contract AFA was entitled
to representation status after the merger. Thus, the D.C.
Circuit would erroneously allow an arbitrator to decide a
representation issue within the NMB’s exclusive jurisdic-
18
tion, when the NMB has already decided that represen-
tation issue against AFA. The D.C. Circuit decision simply
cannot be reconciled with the other circuit decisions.
D. The D.C. Circuit’s Attempt To Distinguish All The
Other Circuit Decisions Is Unavailing
The D.C. Circuit decision attempts to distinguish all the
“cited [circuit] cases, however, since in each one (with a
single exception discussed more fully below), the union
sought not damages, but rather a declaration or an in-
junction that would have given it an ongoing right of rep-
resentation.” App. A, 16a, 879 F.2d, at 913. None of the
many circuit cases upholding the exclusive jurisdiction of
the NMB support the distinction between injunctive relief
and damages. Nor do those cases suggest that damages
relief might be allowed or that the form of relief makes
any difference. Indeed, a number of the decisions are di-
rectly contrary to the purported distinction.
In ALEA v. Republic, supra, discussed more fully supra
at page 15, the Seventh Circuit was faced with a union's
request for an order compelling arbitration of the union's
grievance over contract violations in a merger, just as the
D.C. Circuit faced here. The claims of contract violations
that the union there sought to arbitrate would have en-
titled them to damages and any other appropriate relief,
if the union established a contract violation in arbitration.
Damages were just as much a part of the relief available
to ALEA in arbitration in that case as they are to AFA
in the instant case. Yet, the Seventh Circuit affirmed the
district court’s refusal to compel arbitration and its dis-
missal of the complaint for lack of subject matter juris-
diction because ‘‘the complaint was basically ‘a
representational dispute over which the federal courts do
not have jurisdiction.’ Order, No. 86 C 5239 (N.D. Ill. July
28, 1986).”’ 798 F.2d, at 968. The fact that the union in
ALEA v. Republic would have been able to seek damages
in arbitration (see note 1, supra) did not make any dif-
ference as to court jurisdiction in that case, any more than
it should have in the instant case.
19
Another similar case is the Second Circuit’s Independent
Union of Flight Attendants v. Pan American World Air-
ways, supra. There, the union sought to compel arbitration
of its claim that Pan Am violated its labor contract by
not applying that contract to another newly acquired air-
line. There again if the court had ordered the matter to
arbitration as the union sought, the union would have nat-
urally been able to seek damages in arbitration if it could
establish a contract violation. Nevertheless, the district
court refused to compel arbitration for any relief and dis-
missed for lack of subject matter jurisdiction, and the Sec-
ond Circuit “‘affirm[ed] for substantially the reasons stated
by the district court. 664 F. Supp. 156 (S.D.N.Y. 1987).”’
836 F.2d, at 131. As the district court stated:
It is also generally recognized that labor relations
problems after a merger or acquisition in the airline
industry may in some instances straddle the Railway
Labor Act’s seemingly discrete lines of demarcation.
That is, what may be characterized as a “minor” dis-
pute over the interpretation of a contract may also
implicate concerns which are representational in na-
ture. Where the issues thus overlap, a jurisdictional
problem arises. The proper course for a court to fol-
low in such circumstances is to allow the National
Mediation Board ‘‘alone to consider the post-merger
problems that arise from existing collective bargaining
agreements.’ Teras International Airlines, 717 F.2d
at 164. See also Western Airlines, 107 S. Ct. at 1517.
_ *- *
[A] decision on the contract issues will necessarily
implicate representational concerns.
664 F. Supp., at 158, 159 (S.D.N.Y.), affd, 836 F.2d 130
(2d Cir. 1988). The possibility of damages relief which ex-
isted there, just as it did here, did not change the lack
of court jurisdiction.
That case involved circumstances quite similar to the
instant case; by the time the case got to the Second Circuit
20
the NMB had resolved the representation issue. The Sec-
ond Circuit noted in reference to the NMB’s having as-
serted jurisdiction:
We believe that these events underscore the correct-
ness of the district court’s decision that representation
issues within the jurisdiction of the Mediation Board
are implicated in the instant matter.
836 F.2d., at 131.°
* Following the Second Circuit decision in Pan American, su-
pra, another Pan Am union amended its contract grievance and
complaint for a similar claim over work at the newly acquired
Ransome Airlines, so as to seek only damages, and sought to
compe] arbitration of that claim. Flight Engineers’ International
Association v. Pan American World Airways, No. 87-6694, slip
op. (S.D.N.Y. July 5, 1989) (“FEIA v. Pan American’’) (See App.
M. 67a). The court expressly rejected the distinction the D.C.
Circuit would draw and dismissed for lack of jurisdiction:
Plaintiff's attempts to distinguish JUFA and the present
case ultimately turn upon the notion that seeking contrac-
tual damages calls for a different result than seeking the
right to perform the work; that representational] issues are
not implicated in the former action, while they may be in
the latter. The Court does not find this distinction deter-
minative, and it does not strike at the essence of the JUF'A
opinion. The JUFA Court stated, ‘‘{iJn essence... [t]he
IUFA flight attendants in this case claim, just as the pilots
in Air Line Pilots Ass'n v. Texas Intern. Airlines, 656 F.2d
16 (2d Cir. 1981) claimed, that work on a related carrier
should be assigned to them.’’ That same basic question
underlies any claim for past damages here; the union claims
that work on a related carrier should have been assigned
to them.
Plaintiff seeks to isolate the damage issue from a deter-
mination of representation, but the inquiries are inextric-
able. In order to determine whether the plaintiff is entitled
to damages, the court must first conclude that the union
is entitled to the work. Deciding the representation issue
is a necessary predicate to determining whether a con-
21
The D.C. Circuit acknowledged that in at least one case,
Air Line Pilots Association v. Texas International Air-
lines, Inc., 656 F.2d 16 (2d Cir. 1981), ‘“‘a court specifically
noted a union’s claim for damages, 656 F.2d at 17, yet
required dismissal of the action on the authority of Switch-
men’s Union.”’ App. A, 2la, 879 F.2d, at 916. The D.C.
Circuit, nevertheless, drew the following distinction of that
case from the present case:
The case is not on point, however, because the union
there was seeking a judicial award of damages, not
an order compelling arbitral resolution of its money
claim.
Id., 879 F.2d, at 916 (emphasis in original).
That artificial distinction between whether the damages
are sought from a court or an arbitrator is one that the
same Second Circuit did not observe in its subsequent case
Independent Union of Flight Attendants v. Pan American
World Airways, 836 F.2d 130 (2d Cir. 1988). Nor was that
distinction followed in ALEA v. Republic, supra, or in FEIA
v. Pan American, supra (see note 2, supra). All of these
cases, like the present case, involved union actions to com-
pel arbitration of contract violations which, if proven, would
have entitled the union to relief, including any damages.
Nevertheless, the courts declined to order arbitration of
anything because the courts and an arbitrator lacked ju-
risdiction since a representation issue was involved.
No circuit court has drawn or even suggested either of
the distinctions created by the D.C. Circuit. Nor has any
district court to our knowledge. The D.C. Circuit’s decision
creates a direct conflict among the circuits regarding the
jurisdiction of the courts, of the NMB and of arbitrators
in connection with representation issues arising under the
RLA. This Court must resolve that conflict which is of
critical importance in airline and railroad mergers and ac-
quisitions.
tractual remedy of damages is appropriate.
App. M, 74a-7ida, slip op., at 9-10 (footnote omitted).
22
II. THE DECISION BELOW CREATES A CONFLICT BE-
TWEEN THE D.C. CIRCUIT AND THE NINTH CIRCUIT
IN PARALLEL LITIGATION WITH RESPECT TO THIS
SAME MERGER REGARDING WHETHER A UNION’S
CLAIM FOR DAMAGES FOR ALLEGED BREACH OF
A SUCCESSOR CLAUSE HAS BEEN RENDERED MOOT
The National Mediation Board’s decision terminating all
the Western unions’ representation certifications, including
AFA’s, renders this action moot. AFA has attempted to
revive its action by claiming entitlement to damages for
purported breach of the successor clause and arguing that
such damages claim is not moot. AFA’s damages claim,
however, is inseparable from AFA’s other claims for relief
and, like those other claims, the damages claim was ren-
dered moot by the NMB’s decision.
The D.C. Circuit opinion notes:
Delta points out that the Ninth Circuit held that the
Teamsters litigation was moot, 854 F.2d at 1178, even
though the plaintiff unions there argued, as does AFA
here, that even if their claims for injunctive and dec-
laratory relief were moot, an arbitrator could still
award damages for breach of the successorship clauses
in their CBA’s.
The argument was indeed made in the briefs before
the Ninth Circuit, vet in its per curiam order -dis-
missing the Teamsters action, the court made no men-
tion of it.
App. A, 9a, 879 F.2d, at 910.
The D.C. Circuit had before it the parties’ briefs to the
Ninth Circuit, in which the damages argument was fully
made by the unions and responded to. However, the Ninth
Circuit, in JBTCHWA II, rejected that damages argument
and dismissed the entire action as moot (including the
damages claims) on the basis that ‘‘none of the relief sought
in the original complaint is now available.”’ App. kK, 65a.
854 F.2d, at 1178.
23
The D.C. Circuit acknowledges the split between its de-
cision and the Ninth Circuit’s:
Were the Ninth Circuit decision binding precedent in
this circuit, it might give us greater cause for concern,
since its judgment necessarily, if implicitly, rejected
all of the arguments that the unions made.
App. A, 9a, 879 F.2d, at 910. The split between the two
circuits could not present a clearer or a more compelling
case for review: the two decisions involve the same merger
and the same arguments, and the Air Transport Employ-
ees union even had the same successor clause language as
AFA. IBTCHWA I, 813 F.2d 1359, 1860 (9th Cir.), vacated
and remanded, 108 S. Ct. 53 (1987). Thus, Delta and this
same merger of Western into Delta will be subject to two
totally inconsistent rulings of law on the same issue. Only
this Court can resolve this conflict.®
Before reaching the issue of a damage remedy, an ar-
bitrator would first have to conclude that the successor
clause bound Western to require Delta to recognize AFA
and to assume AFA’s collective bargaining agreement fol-
lowing the merger or, under the alternate formulation of
AFA’s arguments, that the merger was prohibited because
of Delta’s failure to agree to such recognition. Either inter-
pretation presumes that AFA had a vested contractual
right to continued representation of the former Western
flight attendants following the merger. Absent an entitle-
ment to such representation, AFA would have no basis
° See Gondeck v. Pan American World Airways, Inc., 382 U.S.
25 (1965) (denial of certiorari vacated and certiorari granted
after conflict arose between two circuits on same legal issue
involving same accident); Maryland v. United States, 381 U.S.
41 (1965) (certiorari granted to resolve conflict between two
circuits on same legal] issue involving same airline accident and
same record); International Typographical Union v. NLRB, 365
U.S. 705, rehearing denied, 366 U.S. 941 (1961) (certiorari
granted in both cases to resolve conflict between two circuits
concerning lawfulness of same collective bargaining agreement
clause).
24
for any relief, including a damage claim. Any holding that
AFA or its contract was entitled to recognition by Delta,
however, would eviscerate the NMB’s ruling that AFA was
not entitled to representation rights following the merger—
and would encroach upon the NMB’s exclusive jurisdiction.
Thus, the D.C. Circuit’s decision allowing an arbitrator to
consider AFA’s damages claim would affirmatively con-
tradict the NMB’s decision by authorizing damages for
Delta’s failure to recognize AFA, despite the NMB’s de-
termination that AFA was not entitled to recognition.
In addition, since the NMB’s decision was retroactive
to the date of the merger on April 1, 1987, there was
never any period following the merger when AFA or its
labor agreement was entitled to recognition or, conversely,
any period when AFA could have been damaged by Delta’s
failure to recognize it. Even if Western had done precisely
what AFA says the labor contract required, 7.e., obtained
Delta’s voluntary recognition of AFA and its union con-
tract, any such recognition would have been futile. Any
voluntary recognition by Delta would have been rendered
unenforceable at its inception by the NMB’s ruling, pre-
cluding any accrual of damages.
While the NMB has acknowledged that, under some lim-
ited circumstances, a carrier may voluntarily recognize a
representative for a group of employees which does not
constitute a system-wide craft or class, an NMB deter-
mination of the representative status of the overail craft
or class supersedes any such voluntary recognition. Sea-
board Coast Line Railroad Co., 6 N.M.B. 68 (1976). As
the NMB explained in Galveston Wharves, 4 N.M.B. 200
(1962):
This restriction [that the NMB can only certify rep-
resentatives on a carrier-wide basis] upon the Board
does not preclude a carrier from voluntarily recog-
nizing a particular union as a representative of a group
or groups of employees which may not constitute a
generally recognized craft or class. But, when a dis-
pute over representation is brought before the Board,
25
the legislative procedures take precedent [sic], and the
craft or class must be the controlling factor in its
determination. Therefore private representation
agreements which do not conform to the recognized
craft or class lines cannot be relied upon to modify
the requirements of the statute.
Id., at 203 (emphasis added).
In the instant case, the NMB ruled that the merger of
Western into Delta created a single transportation system
and that AFA’s certification as the representative of for-
mer Western employees was terminated on the date of
the merger. Thus, any voluntary recognition previously
obtained by Western from Delta (and any entitlement to
damages for failure to do so) would have been superseded
and rendered ineffective at the very moment it was sup-
posed to become effective upon the merger.
The NMB decision in Midway Airlines, 14 N.M.B. 447
(1987), demonstrates that any voluntary recognition agree-
ment entered into by Delta would have been ineffective
at its inception. Midway involved the merger of Midway
Airlines (‘‘Midway’’) and its subsidiary, Midway Airlines
(1984) (‘Midway 1984’’). Similar to Delta, Midway invoked
the NMB’s jurisdiction under the Merger Procedures to
determine whether the certifications of the unions at Mid-
way 1984 would be terminated by the merger.
Prior to development of the merger plans, however, a
separate subsidiary, Midway Aircraft Engineering
(‘‘MAE”’), had been set up to perform heavy maintenance
work, and MAE was to remain a separate subsidiary fol-
lowirg the merger. The labor agreement between the In-
ternational Brotherhood of Teamsters (““IBT’’) and Midway
1984 required voluntary recognition of the IBT as the
separate collective bargaining representative of certain
Midway 1984 employees in Miami in the event that MAE
took over operation of Midway 1984’s Miami maintenance
facility. 14 N.M.B., at 452-58. As part of the merger plans,
the Miami facility and employees were to be transferred
to MAE and. in accordance with the Midway 1984 agree-
26
ment, MAE recognized the IBT as the separate post-
merger representative of the MAE Miami employees.
That voluntary recognition of the IB[ by MAE was
nullified by the NMB. The NMB, after examining the ap-
plicable factors, found that Midway, Midway 1984 and
MAE constituted a single transportation system for pur-
poses of the RLA and could have but a single represent-
ative covering each combined craft or class. 14 N.M.B.,
at 460. The Board held that the transfer of employees to
MAE was ineffective to ‘‘deprive them or others of their
rights under the Railway Labor Act’’ to have a single
system-wide and craft-wide representative. Jd.
The same outcome would have occurred in the instant
case, even if Western had obtained Delta’s recognition of
AFA as the post-merger representative for the former
Western employees. Midway demonstrates that any such
recognition by Delta, and therefore any damages based on
an entitlement to such recognition, would have been nul-
lified effective April 1 by the NMB’s decision.
Thus, the NMB decision does render moot AFA’s entire
action, including any damages claim. The Ninth Circuit
rejected the same damages argument made by two other
Western unions and dismissed their parallel actions as
moot, after this Court remanded those cases to the Ninth
Circuit precisely to consider the question of mootness.*
Now that the Ninth and D.C. Circuits have decided that
mootness question inconsistently, only this Court can re-
solve that conflict on the important legal question the Court
itself raised.
Ill. THIS CASE PRESENTS ISSUES OF NATIONAL POL-
ICY CRITICAL TO THE VITAL AIR AND RAIL
TRANSPORTATION INDUSTRIES
AFA sought to avoid the mandatory NMB processes,
including its employee election procedure, by seeking ju-
*The question of damages had been raised before this Court
by the Teamsters in the parallel actions in the Ninth Circuit in
the Teamsters’ Brief In Opposition to Delta’s Petition for a Writ
of Certiorari, at 12.
27
dicial and arbitral relief instead. By permitting such forum
shopping and endorsing the intervention of the federal
courts and labor arbitrators in representation disputes, the
decision of the D.C. Circuit conflicts not only with the
other circuits, but with the purposes of the RLA.
The D.C. Circuit decision permitting arbitration where
representation issues are involved would allow the possi-
bility or mere threat of an arbitrator’s award of damages
to unions to affect the outcome of such representation
disputes and lead to fragmentation of the carrier’s system-
wide craft or class bargaining units provided for by the
RLA. The imposition or mere threat of large damages
awards by arbitrators over successor provisions purport-
edly governing representation issues in mergers and ac-
quisitions woule © use airlines and railroads to depart from
the carrier-wide bargaining units provided for by the RLA.
Damages can be just as influential of the parties’ conduct
as injunctive orders in causing such fragmentation.
The RLA provides: ‘‘The majority of any craft or class
of employees shall have the right to determine who shail
be the representative of the craft or class for the purposes
of this chapter.”” 45 U.S.C. § 152, Fourth. As the NMB
explained in the New York Central Railroad Co., 1 N.M.B.
197, 209-10 (1941), single representation for a craft or
class on a carrier-wide basis was mandated by Congress,
and splitting a craft or class contravenes the legislative
directive. See also Seaboard Coast Line Railroad Co., 6
N.M.B. 63, 64-65 (1976).
The NMB has consistently refused to fragment crafts
or classes in exercising its jurisdiction in airline merger
cases because of its RLA mandate to preserve employee
relations stability in the vital transportation industries. It
has also recognized that such fragmentation would pre-
clude effective integration of a combined carrier’s post-
merger operations into a single transportation system. Re-
public Airlines, Inc., 8 N.M.B. 49, 54-55 (1920). Effective
integration of a post-merger labor force is impossible where
some employees are represented by a union, while others,
28
performing the same job alongside union members, are not.
Different work rules and terms and conditions of employ-
ment would apply to employees doing the same jobs at
the same locations, and the inefficiencies of such an op-
eration would be totally inconsistent with the original pur-
pose of the merger. See International Brotherhood 0)
Teamsters v. Texas International Airlines, Inc., 717 F.2d
157, 163 (5th Cir. 1988).
Airline mergers, acquisitions, international marketing
agreements and other related transactions have become
and continue to be increasingly frequent events in the
transportation industry, impelled in large part by height-
ened competition resulting from airline deregulation and
by the recognition that the economy of the United States
is increasingly linked to the international economic order.
These transactions involve the integration of thousands of
employees and hundreds of millions of dollars in assets.
They affect systems which transport many millions of per-
sons and tons of cargo annually. Any disruption to the
effective employee integration of carriers in this vital in-
dustry, such as that threatened by the D.C. Circuit deci-
sion, is of national concern. The fragmentation of the
adjudicatory processes and jurisdictional rules governing
labor relations and collective bargaining obligations in this
area, which would be authorized by the D.C. Circuit de-
cision, is likewise of national importance. The decision
would also inhibit the merger or acquisition of failing car-
riers leading to their disruptive demise. Moreover, because
the decision is under the RLA, it could lead to similar
effects upon the critical railroad industry as well.
The D.C. Circuit’s decision cannot be viewed as merely
an isolated, localized or technical construction of the law.
Many airlines, such as Delta and Western, are subject to
suit in several circuits, including the D.C. Circuit, because
of their extensive operations. Further, most union con-
tracts in the airline industry contain successor provisions,
or other provisions that might be construed to empower
arbitrators to decide representation issues, as the AFA
would construe its contract here. The combination of these
29
factors not only subjects airlines to the disruptions caused
t by the D.C. Circuit’s invasion of the NMB’s jurisdiction,
but also potentially subjects them to conflicting require-
j ments in different circuits with regard to the same trans-
f action.®
j It was precisely to avoid such conflicts, and the resulting
fragmentation of the carrier’s labor force, that Congress
vested exclusive jurisdiction over representation disputes
in the NMB. It is intolerable for the NMB’s exclusive
jurisdiction over representation disputes arising in airline
and railroad mergers to be recognized in the First, Second,
| Fifth, Sixth and Seventh Circuits, but not in the D.C.
Circuit. It is just as intolerable for any damages claim in
this merger to be moot in the Ninth Circuit, but not in
the D.C. Circuit.
With so much at stake in the transactions involving air
and rail carriers, the interests of the parties involved and
those o; the general public require that the issues raised
here be definitely resolved, and that this previously settled
area of labor law be put right again. The confusion caused
by the D.C. Circuit’s ruling in the instant merger alone
is of national concern, but, even more broadly, the ques-
tions raised here are certain to arise again as pending and
future transactions are consummated in the airline and
‘ The instant merger illustrates how those inconsistencies arise.
On the same day (March 31, 1987) that the Ninth Circuit issued
its decision compelling arbitration of two other unions’ griev-
ances and enjoining the Delta-Western merger, the D.C. Circuit
denied AFA’s motion to compel arbitration pending appeal, which
was brought on a legal theory identical to those advanced by
the ATE and IBT unions in the Ninth Circuit. App. C, 26a.
Later, after thi. Court vacated the Ninth Circuit’s decision and
remanded on the question of mootness, the Ninth Circuit found
the entire case, including any damages claim, to be moot. But
the D.C. Circuit decision here found that the AFA’s damage ;
claim was not moot, acknowledging that its decision was at odds
with the Ninth Circuit’s decision. Thus, Delta is presented with
the situation that different results have been reached by two
circuits on the same legal issue in the same merger.
oe
30
railroad industries. It is therefore most important that the
Court finally resolve these questions.
CONCLUSION
For the foregoing reasons, Delta respectfully requests
that this Petition be granted.
September 15, 1989
Of Counsel: Respectfully submitted,
ROBERT S. HARKEY *WILLIAM J. KILBERG
WALTER A. BRILL Scott A. KRUSE
DELTA AIR LINES, INC. BARUCH A. FELLNER
Law Department GIBSON, DUNN & CRUTCHER
Hartsfield Atlanta Int’) Airport 1050 Connecticut Avenue, N.W.
Atlanta, Georgia 30320 Washington, D.C. 20036
MICHAEL H. CAMPBELL (202) 955-8500
PAUL D. JONES Attorneys for Petitioner
FORD & HARRISON ”
600 Peachtree at the Counsel of Record
Circle Building :
1275 Peachtree Street, N.E.
Atlanta, Georgia 30309
APPENDICES
APPENDICES
TABLE OF CONTENTS
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APPENDIX A
United States Comet of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 15, 1988 Decided July 18, 1989
No. 87-7040
ASSOCIATION OF FLIGHT ATTENDANTS, AFL-CIO,
APPELLANT
Vv.
DELTA AIR LINES, INC.
Appeal from the United States District Court
for the District of Columbia
(Civil Action No. 87-00040)
Deborah Greenfield, for appellant. David A. Borer en-
tered an appearance for appellant.
Scott A. Kruse, with whom Michael H. Campbell, Paul
D. Jones, Robert S. Harkey and William J. Kilberg were
on the brief, for appellee. Baruch A. Fellner entered an
appearance for appellee.
2a
Before: MIKVA, BUCKLEY, and D.H. GINsBuRG, Cir-
cuit Judges.
Opinion for the Court filed by Circuit Judge D.H.
GINSBURG.
D.H. GINSBURG, Circuit Judge: This appeal arises
from a labor dispute involving the 1987 merger of West-
ern Airlines, Inc. into Delta Air Lines, Inc. The Asso-
ciation of Flight Attendants, which represented West-
ern’s flight attendants prior to the merger, filed suit in
the district court seeking an order compelling Western
to arbitrate the question whether Western breached the
“suecessorship clause” in its collective bargaining agree-
ment (CBA) with AFA by failing to bind Delta to the
Agreement. The district court dismissed the action, hold-
ing that it involves a representative dispute under § 2,
Ninth of the Railway Labor Act, 45 U.S.C. § 152, Ninth,
and thus comes within the exclusive jurisdiction of the Na-
tional Mediation Board. 662 F. Supp. 1, 3 (D.D.C.
1987).
The Union appealed and, as discussed below, on West-
ern’s motion, we held that some of AFA’s claims for re
lief are moot. The questions now before us are (1)
whether AFA’s remaining claim is moot in light of the
consummation of the Delta-Western merger and the sub-
sequent determination by the NMB retroactively to ex-
tinguish AFA’s certificate as bargaining representative
for Western's flight attendants; and (2) if AFA’s re
maining claim is not moot, whether the district court has
subject matter jurisdiction over it.
I. FACTUAL BACKGROUND
Prior to its acquisition by Delta, Western entered into
a CBA with the Union, in which it recognized AFA “as
the duly designated bargaining agent for the Flight At-
tendants in the employment of [Western],” and as re-
[2]
3a
quired by the Act, 45 U.S.C. § 184, established a Sys-
tem Board of Adjustment “for the purpose of adjusting
and deciding disputes which may arise under the terms
of the Flight Attendant’s Agreement... .” The agree-
ment conferred upon the System Board “jurisdiction over
disputes . . . growing out of grievances or out of in-
terpretation of [or] application of any of the terms of
the Flight Attendants’ Agreement.”
In addition to these essentially standard terms, the
CBA contained the following successorship provision:
This agreement shall be binding on any successor or
merged Company or Companies, or any successor in
the control of the Company, its parent‘s) or sub-
sidiary(ies) until changed in accordance with the
Railway Labor Act, as amended.
In September 1986, Western entered into a merger
agreement with Delta. Under the terms of this agree-
ment, the merger would be affected in two steps: (1) on
December 18, 1986, Delta would acquire 100°- control
of Western; and (2) on April 1, 1987, Western would
be merged into Delta and cease to operate as a sep-
arate entity. The merger agreement provided that West-
ern would honor its CBAs as long as they remained in
effect, but did not purport to bind Delta to Western’s
CBAs.
In October 1986, AFA filed a grievance against West-
ern. Specifically, AFA asserted that Western had a con-
tractual duty to bind any successor to the CBA and that
it breached that duty by agreeing to merge with Delta
without so binding it. Western denied the grievance on
the ground that it raised “representation issues within
the exclusive jurisdiction of the National Mediation
Board.” AFA then submitted the dispute to the System
Board, but Western refused to arbitrate.
Shortly after the first step of the merger took effect,
AFA brought this action in the district court to compel
[3]
4a
arbitration. In its complaint, AFA alleged that its griev-
ance raised a “minor dispute” under the RLA and thus
fel! within the jurisdiction of the System Board. AFA
sought an order directing Western to submit to expedited
arbitration before the System Board for a determination
whether it had breached the CBA, or in the event that
the court did not expedite arbitration, preserving the
status quo pending proceedings before the System Board.
In a memorandum submitted to the district court in
support of its motion for summary judgment, AFA sug-
gested that in the event the System Board were to rule
in its favor, available relief might take the form of: (1)
an order binding Delta to the terms of the CBA, “in-
cluding the provisions recognizing AFA” as the exclu-
sive representative of Western’s flight attendants; or (2)
an order requiring Western (a! to bind Delta to the
CBA as a condition of its consummating the merger: and
(b) to continue to operate as a separate entity; or (3)
a declaration that without a term in the merger agree-
ment binding Delta to the CBA. the merger could not oc-
cur; or (4) a determination that Western would be re-
quired to respond in damages in the event that it failed
to bind Delta to the CBA.
In February 1987, the district court dismissed the action
on the ground that AFA’s complaint raised a ‘“‘representa-
tion dispute” within the exclusive jurisdiction of the
NMB. 622 F. Supp. at 3. Accordingly, the court held
that it lacked jurisdiction to grant the relief sought by
AFA, and dismissed the action with prejudice. AFA
then filed the appeal now before us.
While AFA was pursuing this action in the district
court, two other Western unions challenged the Delta-
Western merger in the District Court for the Central
District of California. They, too, sought both an order
compelling arbitration of their claim that Western had
breached the successorship clauses in their CBAs by fail-
[4]
5a
ing to bind Delta to those agreements, and an injunction
against consummation of the merger pending arbitra-
tion. The district court denied the requested relief, but
the Ninth Circuit, on March 31, issued an order (1)
directing the district court to enter orders compelling
arbitration; and (2) enjoining the merger until either
‘a’ completion of arbitration proceedings: or (b) entry
of a stipulation by Western and Delta that the result of
the arbitration would bind the successor corporation.
IBTCWHA v. Western Airlines, Inc. (Teamsters), 813
F.2d 1359, 1864 (9th Cir. 1987). On April 1, however,
the scheduled date of the operational merger, Justice
O’Connor granted the carriers’ ex parte application for
a stay of the Ninth Circuit’s order. 480 U.S. 1301 (1987)
(in chambers). With the injunction thus lifted, the second
step of the Delta-Western merger took place as planned,
Western ceased to exist as a separate operating entity,
and Delta refused to recognize either the CBA or AFA’s
status as the representative of the former Western flight
attendants.
Shortly thereafter, Delta petitioned the NMB to ‘“de-
termine whether the Board’s certifications of the Western
labor organizations as collective bargaining representa-
tives of the various crafts or classes at Western have been
extinguished or terminated effective April 1, 1987." Jn 1
Delta Air Lines, Inc. and Western Air Lines, Inc., 14
N.M.B. 291 (1987). On July 9, the NMB ruled that, the
merger having eliminated Western as a separate onerat-
ing identity, the certifications of the Western unions (in-
cluding AFA) that represented a minority of their crafts
in the merged entity were extinguished retroactively to
April 1. 7d. at 301.
On October 5, 1987, the Supreme Court granted certio-
rari in the Teamsters litigation, vacated the decision of
the Ninth Circuit, and remanded the case for that court to
consider whether it was moot. 108 S. Ct. 53 (1987).
Thereafter, the Ninth Circuit, having requested and re-
[5]
6a
ceived briefing on the issue of mootness, issued a per
curiam order dismissing that action as moot. 854 F.2d
1178 (9th Cir. 1988).
Meanwhile, Delta had moved to dismiss this appeal on
the ground that the NMB’s retroactive decertification of
AFA rendered it moot. Another panel of this court held,
on June 6, 1988, that “Appellant’s claim based on any right
of continued representation” was moot, but that it was
“not clear whether an arbitrator could award damages
for breach of the collective bargaining agreement.” Ac-
cordingly, the court denied Delta’s motion but ordered
the parties to limit their briefs to that issue. We turn
now to the question left open in our order of June 6.
II. MOOTNESS
By virtue of “the constitutional command that the
judicial power extends only to cases or controversies,” a
federal court lacks jurisdiction ever a case that has become
moot. Powell v. McCormack, 395 U.S. 486, 496 n.7
(1969). A case is moot when “the issues presented are
no longer ‘live’ or the parties lack a legally cognizable
interest in the outcome,” but as long as some issues remain
alive, “the remaining live issues supply the constitutional
requirement of a case or controversy.” Jd. at 496, 497.
Even though a claim for injunctive or declaratory relief
has been rendered moot by intervening events, which our
June 6 order indicates happened here, a claim for dam-
eges keeps the controversy alive if that claim “is not so
insubstantial or so clearly foreclosed by prior decisions
that th[e] case may not proceed.” Memphis Light, Gas &
Water Division v. Craft, 436 U.S. 1, 8-9 (1978). See also
Textile Workers Union of America v. Lincoln Mills of
Alabama, 353 U.S. 448, 459 (1957) (request for order
to arbitrate not moot because arbitrator could award
damages); Ellis v. Bretherhcod of Railway Clerks, 466
U.S. 435, 441-42 (1984). Thus, the question whether the
consummation of the merger and the decertification of
[6]
AFA rendered this case moot turns upon whether AFA
appears to state a claim upon which it could recover in
arbitration an award of damages against Western for
breach of the successorship provision in the CBA.
Delta’s principal argument is that in order to award
damages to AFA, the arbitrator would first have to find
that the CBA entitled the Union to represent Western’s
flight attendants after the merger; and that any such
finding would contravene the NMB’s determination to
decertify AFA as of the merger date, thus “encroach [ing]
upon the NMB's exclusive jurisdiction” over representa-
tion disputes. Since the NMB has already exercised its
jurisdiction with respect to the Delta-Western merger,
the argument runs, this court no longer has the power to
grant the relief that AFA seeks, viz., an order compelling
Delta to arbitrate the Union’s grievance.
Delta’s argument is framed in terms of mootness, but it
necessarily implicates the statutory question whether
AFA’s claim for damages is within the exclusive jurisdic-
tion of the NMB, since if it is not, the predicate under-
lving Delta’s argument would fail. Although that ques-
tion could plausibly be resolved on mootness grounds, we
think it is more properly addressed in terms of the district
court's subject matter jurisdiction over the damage aspect
of this ease. Cf. Marshall v. Local Union No. 639, Int'l
Brotherhood of Teamsters, 593 F.2d 1297, 1301 n.16 (D.C.
Cir. 1979) ‘court may decide issue of subject matter
jurisdiction where both jurisdiction and mootness ques-
tions are raised and where “the two are partially inter-
locked’:. As set forth in Part III below, we conclude
that the district court has jurisdiction over AFA’s damage
claim.
Delta argues in the alternative that even if the district
court has jurisdiction, AFA cannot possibly demonstrate
a claim for damages because (1) at all times prior to
April 1, Western properly recognized AFA under the
[7]
8a
terms of the CBA; and (2) the NMB’s decertification of
AFA divested it of any right it may have had to enforce
its agreement with Western after that date. Delta also
argues, in a similar vein, that even if the successorship
clause of the CBA required Western to bind Delta to that
agreement, Delta’s voluntary recognition of AFA would,
by virtue of the NMB’s retroactive decertification of AFA,
be ‘superseded and rendered ineffective at the very
moment it was supposed to become effective upon the
merger.”
Neither of these arguments is entirely responsive to the
issue. AFA does not now dispute that the NMB’s de-
certification order deprived it of any right to represent
Western employees beyond the April 1 merger date, and
this court has already held that any claim seeking to
assert such a right would be moot. That AFA no longer
has the right to specific enforcement of the successorship
clause, however, simply does not answer the question
whether Delta is answerable in damages for Western’s
alleged pre-merger breach of that clause. (Delta does not
dispute that, as a general rule, grievances arising before
expiration of a CBA survive and continue to be governed
by its terms. See Elgin, Joliet & Eastern Railway Co. v.
Burley, 325 U.S. 711 (1945). Cf. Nolde Brothers, Inc. v.
Local No. 858, Bakery & Confectionery Workers Union,
430 U.S. 243, 250-52 (1977) (same under NLRA)).
Assuming, as we must in this context, that Western
was obliged by the successorship clause to bind any
merger partner to the CBA, an arbitrator might find
that Western was required to structure the merger
so as to preserve itself as a separate operating
entity. In that event, the arbitrator might also find that
the NMB’s determination to extinguish AFA’s certifica-
tion as representative of the former Western flight at-
tendants was a foreseeable consequence of Western’s
breach, and that the carrier is liable to AFA for its
(8)
9a
contract damages. The situation would be no different
analytically if the CBA had expressly provided for a
sum of liquidated damages in the event that Western
breached the successorship clause. Neither of Delta’s
theories explains why the arbitrator could not award
relief in the form of damages based upon such a breach.
Delta points out that the Ninth Circuit held that the
Teamsters litigation was moot, 854 F.2d at 1178, even
though the plaintiff unions there argued, as does AFA
here, that even if their claims for injunctive and declara-
tory relief were moot, an arbitrator could still award
damages for breach of the successorship clauses in their
CBA’s.
The argument was indeed made in the briefs before the
Ninth Circuit, yet in its per curiam order dismissing the
Teamsters actions, the court made no mention of it. In-
deed, the court characterized the relief requested as
merely “an order compelling Western to arbitrate and an
injunction prohibiting the merger,” and concluded that in
light of the intervening consummation of the Delta-
Western merger, ‘none of the relief sought in the original
complaint is now available.” Jd. Were the Ninth Circuit
decision binding precedent in this circuit, it might give
us greater cause for concern, since its judgment neces-
sarily, if implicitly, rejected all of the arguments that
the unions made. Because the court did not explain why
it rejected the unions’ argument that their damage claim
was live, however, its decision adds no persuasive force
to the arguments already advanced by Delta in this action.
For the reasons given above, we conclude that AFA'’s
damage claim is not “so insubstantial or so clearly fore
closed by prior decisions that th[e] case may not proceed,”
Memphis Light, 436 U.S. at 8-9, and turn to the question
of the district court’s subject matter jurisdiction over that
claim.
(9]
10a
III. JURISDICTION
Section 2, Fourth of the RLA, which establishes the
right of covered employees to bargain collectively, also
provides that “the majority of any craft or class of em-
plovees shall have the right to determine who shall be the
representative of the craft or class.” 45 U.S.C. § 152,
Fourth. Section 2, Ninth of the Act provides:
If any dispute shall arise among a carrier’s em-
plovees 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,
in writing, the name or names of the individuals or
organizations that have been designated and author-
ized to represent the employees involved in the dis-
pute, and certify the same to the carrier.
45 U.S.C. § 152, Ninth. Section 2, Ninth further pro-
vides that upon receipt of a certification from the RLA,
“the carrier shall treat with the representative so certi-
fied as the representative of the craft or class for the
purposes of this chapter.” Jd.
In Switchmen’s Union v. National Mediation Board,
320 U.S. 297 (1943), the Supreme Court held that the
NMB’s power to resolve “any dispute... among a car-
rier’s employees as to who are the representatives of such
emplovees” is exclusive. 7d. at 303. The right of a
majority of the employees to choose the bargaining repre-
sentative is protected by the NMB’s certification powe.
under §2, Ninth, to the exclusion of any concurrent
judicial protection. Jd. at 301.
In reaching this conclusion, the Court looked to the
structure and legislative history of the RLA, and there
found that Congress has consistently expressed a strong
preference for “conciliation, mediation, and arbitration,”
providing judicial remedies only in specific narrow cir-
cumstances. Jd. at 302. Against that background, the
[10]
lla
Court concluded that “Congress intended to go no further
in its use of the processes of adjudication and litigation
than the express provisions of the Act indicate.” Jd. The
Court further noted that Congress intended the NMB
finally to resolve “jurisdictional disputes between unions,”
and concluded that “if Congress had desired to implicate
the federal judiciary and to place on the federal courts
the burden of having the final say on any aspect of the
problem, it would have made its desire plain.” Jd. at 303.
The Court then found that a district court has no
power either to review the NMB’s certification of a repre-
sentative, or to make such a certification itself, but that
it does have the power, which the Board itself lacks, to
enforce the NMB’s certification:
The Mediation Board makes no “order.” And its
only ultimate finding of fact is the certificate. The
function of the Board under § 2, Ninth is more the
function of a referee. To this decision of the referee
Congress has added a command enforcible by judicial
decree.
Id. at 304.
The Court’s opinion in Switchmen’s Union leaves open
two questions central to this dispute. First, apart from a
challenge by one union to the merits of the NMB’s
certification of another union, such as that case presented,
what types of claims constitute “jurisdictional disputes”
and are thus within the NMB’s jurisdiction? Second,
may a party laying claim to a remedy that the NMB
cannot give seek relief elsewhere, either through court-
ordered arbitration, or in the district court itself?
The Court suggested an answer to the second question
in General Committee of Adjustment v. Missouri-Kansas-
Texas Railroad Co., 320 U.S. 297 (1943) (M-K-T), a
companion case to Switchmen’s Union involving a dispute
between two unions, representing separate crafts of loco-
motive employees, over the correct system for handling
[11]
12a
cross-assignments and promotions from one craft to an-
other. Although the precise question presented in M-K-T,
as in Switchmen’s Union, was whether a court could hear
a representation dispute between two unions, the Court
strongly suggested that arbitration is available for the
pursuit of a remedy unavailable from the NMB.
The Court again noted that in enacting the RLA, Con-
gress “entrusted large segments of this field to the volun-
tary process of conciliation, mediation, and arbitration,”
while singling out only certain disputes, such as those
covered by § 2, Ninth, for resolution by the NMB (aided
by judicial enforcement of any certification so obtained).
320 U.S. at 332. The Court then conecludued that a juris-
dictional dispute was not properly brought into court if,
although not within the jurisdiction of the NMB, it could
be resolved through arbitration:
However wide may be the range of jurisdictional]
disputes embraced within § 2, Ninth, Congress did
not select the courts to resolve them. To the con-
trary, it fashioned an administrative remedy and
left that group of disputes to the National Media-
tion Board. If the present dispute falls within § 2,
Ninth, the administrative remedy is exclusive. If a
narrower view of $2, Ninth is taken .. ., the con-
clusion is irresistible that Congress carved out of the
field of conciliation, mediation and arbitration only
the select list of problems which it was ready to place
in the adjudicatory channel. All else it left to those
voluntary processes whose use Congress had long en-
couraged to protect these arteries of interstate com-
merce from industrial strife.
Id. at 336-37. The Court emphasized that whatever the
proper scope of the NMB’s jurisdiction, “[bleyond the
mediation machinery furnished by the Board lies arbitra-
tion.” Id. at 332.
Switchmen’s Union and M-K-T lay down several prin-
ciples relevant to the present dispute. First, the Court
[12]
13a
made it perfectly clear in both cases that only the NMB
may certify an employee representative. Second, the
Court in Switchmen’s Union suggested that the scope of
the NMB’s power under § 2, Ninth, is narrowly limited
to determining the representative and issuing its certifi-
cate. Finally, the Court’s analysis in M-K-T strongly
suggests that if a dispute is not governed by § 2, Ninth
it is not precluded, but rather may be pursued through
the voluntary processes, such as arbitration, that Congress
made the norm.
These principles do not resolve, but they do inform,
our resolution of the precise issues before us, which are:
(1) whether AFA’s remaining claim raises a “dispute
. as to who are the representatives of [Western’s]
employees” within the meaning of § 2, Ninth of the RLA:;
and (2) assuming this action is not technically within
the NMB’s jurisdiction, whether the relief sought by
AFA is nonetheless precluded on the ground that the
complaint raises—as Delta calls them—‘“representation
issues.”
A. Jurisdictional disputes
All of the courts of appeals to have considered the issue
(as this court has not) have held that the question
whether a union’s certification survives an airline merger
is a matter within the exclusive jurisdiction of the NMB.
See International Ass’n of Machinists v. Northeast Air-
lines, Inc., 536 F.2d 975, 977 (1st Cir. 1976); Air Line
Pilots Ass’n v. Texas Int'l Airlines, Inc., 656 F.2d 16,
23-24 (2d Cir. 1981) ; International Brotherhood of Team-
sters v. Texas Int'l Airlines, Inc., 717 F.2d 157, 159 (Sth
Cir. 1983); Brotherhood of Ry. Clerks v. United Air
Lines, Inc., 325 F.2d 576, 579-80 (6th Cir. 1963); Air
Line Employees Ass’n v. Republic Airlines, Inc., 798 F.2d
967, 968-69 (7th Cir. 1986). The result is no different if
the union frames its action as a contract dispute arising
from a successorship clause in a CBA. A claim seeking
[13]
l4a
either specific performance of such a clause or a declara-
tion that it is binding is nonjusticiable because the relief
sought is, in effect, a certification within the meaning of
§ 2, Ninth; and as such, it is within the exclusive com-
petence of the NMB. See, e.g., Brotherhood of Ry. Clerks,
325 F.2d at 579-80. See also Texas Int’l Airlines, 717
F.2d at 162 (“The form of the complaint [does] not con-
trol, for the substance of the dispute in fact involve[s] the
question of representation of the employees.”) ; Brother-
hood of Ry. Clerks, 325 F.2d at 579 (“Even though an
action is brought as one sounding in contract the courts
have no jurisdiction ‘where “validity” of the contract
depends upon the merits of a representation dispute.’ ’’)
(citation omitted).
The principle that 4 court lacks power to declare, even in
an action framed so as to sound in contract, whether
a union may continue to represent employees in the post-
merger context, is supported, if not compelled, by the
Supreme Court’s analysis in General Committee of Ad-
justment v. Southern Pacific Co., 320 U.S. 338 (1943).
There one of the carrier’s unions sought a declaratory
judgment invalidating a CBA insofar as it purported to
designate another union as the representative of certain
employees. The Court held that the action, though framed
as a dispute over the validity of the CBA, was in sub-
stance a “jurisdictional dispute,” since it “raise[d] the
question whether one collective bargaining agent or the
other is the proper representative for the presentation
of certain claims to the employer.” Jd. at 343. Seeing
“no reason for differentiating this jurisdictional dispute
from [those involved in Switchmen’s Union and M-K-T],”
the Court held that it fell within the exclusive jurisdiction
of the NMB. Id. at 343-44.
Application of the Southern Pacific principle to an ac-
tion seeking either injunctive or declaratory relief with
respect to the successorship clause of a CBA clearly ad-
vances the policies underlying the RLA, as implemented
[14]
15a
by the NMB. Congress entrusted the NMB with ex-
clusive power to resolve representation disputes between
unions because of the inherent divisiveness of such dis-
putes and the strong interest of the parties in nonetheless
“get([ting}] the matter settled.” Switchmen’s Union, 320
U.S. at 303.
The NMB has in turn adopted the rule that when two
or more airlines merge their operations, the certificate of
any union representing only a minority of the relevant
employees of the merged carrier is extinguished, to be
replaced by whatever new certificate the NMB may grant
with respect to representation of the employees of the
merged entity as a whole. Republic Airlines, Inc. and
Hughes Air Corp., 8 N.M.B. 49, 54-55 (1980). As Judge
Rubin of the Court of Appeals for the Fifth Circuit
explained in the context of a merger between a unionized
airline and a non-union airline, post-merger judicial en-
forcement of any provision of a pre-merger CBA would
undermine the NMB’s rule, because it would necessarily
entail the union’s continued representation of its former
constituents, regardless of whether they constitute a ma-
jority of their class in the merged enterprise; as a result,
some employees could be represented while others in the
same class would not be. Texas Jnt’l Airlines, 717 F.2d
at 163. For a court even to “grant injunctive relief main-
taining the staus quo if the underlying dispute is repre-
sentational in nature’ would be problematic, the court
observed, ‘because to do so would necessarily have the
effect, at least during the period of the injunction, of
deciding the representational issue.” Jd. at 161. The
court therefore 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.
Relying on the cases canvassed above, Delta argues that
AFA’s claim raises a representation dispute under § 2,
Ninth, and that as a result “[a}ny order of this Court
[15]
16a
or any award of an arbitrator in AFA’s favor in this
dispute inevitably would invade the NMB’s exclusive juris-
diction over representation issues and exceed the Court’s
or the arbitrator’s jurisdiction.” Delta’s conclusion is not
compelled by the cited cases, however, since in each one
(with a single exception discussed more fully below), the
union sought not damages, but rather a declaration or
an injunction that would have given it an ongoing right
of representation—truly the functional equivalent of the
certificate that the NMB alone can issue. The courts
found, quite sensibly, that these nominal contract claims
were de facto claims to judicial certification of the plain-
tiff union’s representative status. To entertain such a case
would not only violate the spirit of the Supreme Court’s
teaching, it could also create a situation where, contrary
to NMB policy, employees working side by side would be
represented by different unions (or some would be repre-
sented and others not) and subject to diverse terms of
employment.
An award of damages for a past breach of contract, on
the other hand, would not have those untoward results.
First, the NMB’s policy of revoking a minority union’s
certificate as of the date of an operational merger would
not be affected if it were later determined that the carrier,
by agreeing to the terms of the merger, had breached its
CBA. The merger would not be undone; the old CBA
would not be reinstated; all employees in any one craft
would still be subject to uniform terms of employment.
Second, an award of damages would have no effect on
the NMB’s certification determination. The plaintiff
union’s pre-merger status as representative would not be
revived, nor could any factual finding by an arbi-
trator in a damage action for breach of the CBA either
overturn or predetermine the NMB’s decision certifying
a post-merger representation. Finally, a damage award,
unlike prospective relief, would not cause any confusion
as to which union is the proper post-merger representative.
[16]
l7a
The NMB would make that determination as usual; the
employees would continue to be represented by the sole
representative it has certified; and any failure on the part
of the employer to “treat with” the certified representa-
tive would be remediable in federal court, regardless of
any determination that the arbitrator might make in the
course of deciding the damage case.
Delta points, however, to Justice O’Connor’s opinion
staying the injunction in the Teamsters litigation, and
notes that although there was a damage issue in that case,
Justice O'Connor nonetheless looked to the “great weight
of the case law” holding that “disputes as to the effect of
collective-bargaining agreements on representation in an
airline merger situation are representation disputes
within the exclusive jurisdiction of the National Media-
tion Board.” 480 U.S. at 1805. Delta would have us read
Justice O’Connor’s opinion as standing for the unqualified
proposition that (in the carrier’s words) all “disputes
over labor contract successorship clauses are within [the]
NMB’s jurisdiction.”
We do not read Justice O’Connor’s opinion so broadly,
however. The only issue before the Justice was the pro-
priety of the Ninth Circuit’s order enjoining the merger
pending the outcome of arbitration. In that posture, the
case warranted her expedited attention only because of
the disruptive effect of the injunction; her opinion focuses
accordingly on the nature and consequences of the emer-
gency relief that the unions sought. For example, the
opinion notes, quoting Judge Rubin in Texas /nt’l Air-
lines, 717 F.2d at 161, 164, that even a status quo injunc-
tion “would necessarily have the effect, at least during
the period of the injunction, of deciding the representa-
tional issue,” and that Congress intended the NMB “alone
to consider the post-merger problems that arise from exist-
ing collective bargaining agreements.” 480 U.S. at 1306.
Although the opinion comments favorably upon the deci-
sion of the district court in the case now before us, that
[17]
18a
decision had given no hint of a damage claim lurking
behind the injunction then of immediate concern, and
Justice O’Connor’s opinion therefore understandably de-
scribes AFA’s complaint only as one “seeking an order
compelling Western to submit to arbitration .. . and en-
joining the merger pending completion of [arbitral] pro-
ceedings.” Jd. at 1306-07. It is thus plain enough that
Justice O’Connor was addressing only the issue directly
before her, and had no occasion to consider, much less to
rule upon, the question whether a claim for damages
might survive a merger after her order staying the
injunction.
As this case currently stands, it simply does not raise
the concerns set forth in Justice O’Connor’s opinion.
AFA’s claims for injunctive relief are now moot, and no
resolution of the remaining damage claim could have anv
effect upon either the Delta-Western merger or the repre-
sentation of Delta’s emplovees. This dispute is over a sum
of money: Delta has it, and AFA wants it; no other
person, and no transaction, is affected by which of them
ends up with it.
We do not see here a jurisdictional dispute within § 2,
Ninth of the RLA. Neither the certification (or decerti-
fication! of a representative, nor the functional equivalent
thereof, nor anything even remotely akin thereto, is at
stake. Thus, we turn to the only other issue that Delta
seeks to interpose between AFA and its demand to arbi-
trate its damage claim, viz., whether, even in the absence
of a jurisdictional dispute, § 2, Ninth by implication bars
arbitration of any dispute that raises a “representation
issue.” We now turn to that question.
B. Representation issues
Delta’s argument proceeds from the premise that
“lw]hen a representation issue is shown to exist in the
course of other legal proceedings, the court immediately
must dismiss the legal action and require the parties to
[18]
19a
proceed, if at all, before the NMB.” From that Delta
reasons that because AFA’s complaint raises “issues” of
representation, neither the district court nor an arbitrator
may hear it; even if it does not raise a true “juris-
dictional dispute,” that is, “Dismissal is required even
if the union’s complaint arguably raises issues of contract
interpretation intertwined with the representation dis-
pute.” As we understand this argiment, it encompasses
two alternative legal theories. The first is that any case
raising an “issue” of representation, no matter what form
of relief it seeks, can be resolved only by the NMB. The
second is that, if the NMB lacks jurisdiction to entertain
a claim in which a representation issue is raised, then
there is simply no remedy available because the RLA bars
any other tribunal from deciding the representational
issue.
Delta’s first theory is premised, as an initial matter,
upon AFA’s complaint raising an issue of representation.
According to Delta: (1) For AFA to prevail on its claim
for damages, the arbitrator would have to find that the
successorship clause conferred some right upon AFA, and
that (2) had that right been honored, AFA would still
be representing the Western flight attendants. Thus, (3)
the arbitrator, in order to uphold AFA’s claim, would
have to resolve an issue of representation—which, as we
have seen, Delta claims may be decided only by the NMB.
Assuming arguendo that AFA’s claim, although not a
jurisdictiona! dispute, raises an issue of representation,
we do not find Delta’s argument persuasive. First, Delta
does not maintain that NMB, under § 2, Ninth, can
award damages for breach of a CBA or otherwise; as the
Supreme Court made clear in Switchmen’s Union, the
powers granted to the NMB under that section are quite
narrow. 820 U.S. at 304. In effect, then, Delta urges
upon us, or so it seems, the anomalous result that the
NMB has exclusive jurisdiction_over a claim as to which
it has no power to grant a remedy.
[19]
20a
Second, we question whether (at least in the absence
of a clear statutory allocation of competence) any adjudi-
catory tribunal can have exclusive jurisdiction over an
issue, as opposed to a type of claim or a remedy. Vir-
tually any issue may arise in a variety of different con-
texts. As a general rule, whether a case is within the
exclusive jurisdiction of an expert tribuna! depends upon
the nature not of the issues that may have to be decided,
but of the substantive cause of action. See Laborers
Health and Welfare Trust Fund v. Advanced Lightweight
Concrete Co., Inc., 108 S. Ct. 880, 832-33 (1988) /‘not-
withstanding NLRB’s exclusive jurisdiction over labor law
matters, “federal courts may decide labor law questions
that emerge as collateral issues in suits brought under
independent federal remedies”) (quoting Connel! Con-
struction Co., Inc. v. Plumbers & Steamfitters Local Union
No. 100, 421 U.S. 616, 626 (19751); Pan American
Petroleum Corp. v. Superior Court of Delaware, 366 U.S.
656, 662-66 (1961! (FPC’s exclusive jurisdiction does not
extend to state contract action seeking recovery of over-
charges merely because the action calls for a determina-
tion of the validity of rates under the Natural Gas Act) ;
Great Northern Ry. Co. v. Merchants Elevator Co.,
259 U.S. 285, 290-91 (1921) (notwithstanding ICC’s ex-
clusive jurisdiction to determine rates, “the attainment of
uniformity does not require that in every case where the
construction of a tariff is in dispute, there shall be a
vreliminary resort to the Commission.”). Cf. Pratt v.
Paris Gas Liaht & Coke Co., 168 U.S. 255, 259 (1897)
(“Section 711 [conferring on the federal courts exclusive
jurisdiction over patent disputes] does not deprive the
state courts of the power to determine questions arising
under the patent laws, but enly of assuming jurisdiction
of ‘cases’ arising under those laws.”) (emphases in orig-
inal).
To illustrate, suppose that a newspaper published an
article stating that AFA, as the certified representative
[20]
2la
of Western’s employees, had by racial discrimination vio-
lated its duty of fair representation, even though the pub-
lisher knew that in reality, AFA did not represent any
Western employees. In the ensuing libel action, the issue
would necessarily arise—since AFA would have to show
that the published statements were false—whether AFA
was or was not the employees’ representative. Under
Delta’s first theory, the presence of the “representation
issue’ would mean that the NMB would have to hear the
suit. In addition to being inconsistent with the limited
role Congress envisioned for that tribunal, Switchmen’s
Unien, 320 U.S. at 304, the result is obviously absurd.
To the extent Delta suggests that every case that merely
entails an issue of representation must be brought before
the NMB, then, that argument plainly proves too much.
In support of its argument, Delta points to the Second
Circuit’s decision in Air Line Pilots, the only case we
have found in which a court specifically noted a union’s
claim for damages, 656 F.2d at 17, yet required dismissal
of the action on the authority of Switchmen’s Union. The
case is not on point, however, because the union there
was seeking a judicial award. of damages, not an order
compelling arbitral resolution of its money claim. As we
read Air Line Pilots, the court did not hold, as Delta
suggests, that there is a “jurisdictional dispute” within
the exclusive province of the NMB wherever an “issue”
of representation appears; rather, the court merely held
that to the extent a damage action for breach of a CBA
may fall outside the jurisdiction of the NMB, the general
principle of judicial noninterference in labor disputes bars
the court from itself entertaining the claim.
We may assume that Congress could grant a tribunal
exclusive authority to pass upon a particular issue of
federal law (though Delta has pointed to no instance in
which it has done so); still, we find no evidence that
Congress intended to do that here. In support of its
theory, Delta does cite to statements in several cases
[21]
22a
where the courts, faced with that clearly were jurisdic-
tional disputes within the scope of § 2, Ninth, described
the scope of the NMB’s exclusive jurisdiction somewhat
expansively, that is, without distinguishing between “ju-
risdictional disputes” and “representation issues.” Sce,
e.g., Texas Int'l Airlines, 717 F.2d at 161, 162. We re-
iterate, however, that the relief sought in those cases
Was either the functional equivalent of certification by
the NMB, see id. at 158 (union’s complaint would require
the court to “determin{e] who represents the hitherto
covered employees after the merger’’), or a judicial award
of damages that appeared to be inconsistent with the
background of “conciliation, mediation, and arbitration”
emphasized by the Court in M-K-T, 320 U.S. at 332, sec
Air Line Pilots Ass’n, 656 F.2d at 17. and with the
“narrow role of the courts in enforcing the RLA,” id at
24. In the absence of some specific indication that the
legislature intended that all issues arguably related to
representation must be decided by the NMB, we cannot
conclude that Congress vested in a body with such limited
powers exclusive jurisdiction over a potentially broad
range of disputes that may only tangentially raise issues
within its competence.
We turn then to Delta’s second theory, that even if the
NMB cannot entertain a particular claim for relief in
which a representation issue has arisen, the presence of
that issue precludes any other authority from passing
upon it, with the result that no remedy is available any-
Where. Under this theory, the statutory provision for
certification exclusively by the NMB has a preclusive
effect, and any clause in a CBA, such as a successorship
clause, the interpretation of which would require an
arbitrator to make a finding on a representation issue,
would simply be unenforceable and of no effect.
Due respect for privately bargained outcomes cautions
against that result, unless some important public policy
[22]
23a
would otherwise be compromised. Delta has pointed us
only to the policies underlying Congress’s delegation to
the NMB of exclusive jurisdiction to determine who will
represent employees in a post-merger setting. Although
those policies do support the rule that a successorship
clause cannot be specifically enforced, they simply do not
require that an award of damages for breach of such a
clause be barred. The most that can be said in support
of Delta’s position is that if a carrier were liable in dam-
ages for breach of the successorship clause in its CBA,
it might forego entering into an otherwise desirable
merger.
Delta has pointed us to nothing in the language, the
legislative history, or even the spirt of the RLA to sug-
gest that Congress, in vesting the NMB with exclusive
jurisdiction over jurisdictional disputes, intended to re-
move barriers to economically efficient merger activity on
the part of airline carriers. Cf. 49 U.S.C. § 11341/a)
(exempting railroad mergers from, inter alia, the anti-
trust laws). In the absence of such an indication, we
decline to hold, in the context of the threshold jurisdic-
tiona] issue now before us, that a bargained-for successor-
ship clause creates no legal rights or duties whatsoever.
Whether the successorship clause in this case creates any
legal obligations is, of course, a matter within the province
of the arbitrator.
IV. CONCLUSION
This damage action is not a jurisdictional dispute
within the NMB’s exclusive jurisdiction under § 2,
Ninth, of the RLA. At most, it may raise what Delta
calls a “representation issue.” In light of the Supreme
Court’s emphasis in M-K-T on the background availability
of arbitration for disputes not within the purview of & 2,
Ninth, however, we do not think it is non-arbitrable
merely because that issue arises, because its resolution in
arbitration would not interfere, as a practical matter,
[23]
24a
with the NMB’s certification function. We therefore con-
clude that § 2, Ninth of the RLA does not divest the
district court of jurisdiction to order arbitration of AFA’s
claim for damages.
For all the foregoing reasons, the order of the district
court dismissing the action is reversed, and the action is
remanded for further proceedings.
It is so ordered.
—S
25a
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
September Term, 1987
CA 87-00040
No. 87-7040
Association of Flight Attendants, AFL-CIO,
Appellant
v.
Western Airlines, Inc.
BEFORE: Silberman, D.H. Ginsburg, and Sentelle, Circuit
Judges
Upon consideration of Defendant/Appellee’s Motion to
Dismiss for Mootness and Appellant’s opposition thereto,
it 1s
ORDERED by the court that Defendant/Appellee’s Mo-
tion to Dismiss for Mootness be denied. Although Appel-
lant’s claim based on any right of continued representation
is moot, it is not clear whether an arbitrator could award
damages for breach of the collective bargaining agreement.
It is
FURTHER ORDERED that the parties limit their briefs
to the issue of whether an arbitrator could award damages
to Appellant if the arbitracor finds that Appeilee breached
the collective bargaining agreement.
United States Court of Appeals
For the District of Columbia Circuit
FILED JUN 06 1988
CONSTANCE L. DUPRE
CLERK
Per Curiam
| EE Se
26a
+
APPENDIX C
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
September Term, 1986
No. 87-7040
ASSOCIATION OF FLIGHT ATTENDANTS, AFL-CIO,
Appellant,
V.
WESTERN AIRLINES, INC.
BEFORE: Mikva, Buckley and D.H. Ginsburg, Circuit
Judges
FILED MAR 31 1987
ORDER
Upon consideration of Appellant’s Emergency Motion
for Injunction To Compel Arbitration Pending Appeal and
the Opposition and Response thereto and of Appellee’s
Emergency Motion For Expedited Appeal And Decision
Before April 1, 1987, it is
ORDERED by the court that Appellant’s motion to com-
pel arbitration be denied. It is
FURTHER ORDERED by the court that Appellee’s mo-
tion to expedite be denied.
27a
APPENDIX D
[1] ASSOCIATION OF FLIGHT
ATTENDANTS, AFL-CIO,
Plaintiff,
v.
WESTERN AIRLINES, INC.,
Defendant.
Civ. A. No. 87-0040.
United States District Court,
District of Columbia.
Feb. 20, 1987.
Deborah Greenfield, Stephen Crable, for plaintiff.
William J. Kilberg, Baruch A. Fellner, Washington, D.C.,
Scott A. Kruse, Los Angeles, Cal., for defendant.
MEMORANDUM
GESELL, District Judge.
This is a labor dispute which has arisen under the Rail-
way Labor Act, 45 U.S.C. §151 to 188 (1982) (““RLA”’).
It comes before the Court on plaintiff union’s (‘‘AFA’’)
verified complaint and dispositive cross-motions. Defendant
Western Air Lines, Inc. is scheduled to merge with Delta
Air Lines, Inc. on April 1, 1987. Western's employees are
represented by several different unions according to craft,
including AFA. Delta is a non-union carrier. AFA claims
that Western has breached its 1984 collective bargaining
agreement with AFA by failing to bind Delta to the terms
of that agreement.
Facts
There are no material facts in dispute.
I ss taaieeeieneenenetill
28a
(1) On September 9, 1986, Western and Delta entered
into an Agreement and Plan of Merger.
(2) On October 21, 1986, AFA filed a grievance over
Western’s failure to bind Delta to the 1984 collective bar-
gaining agreement.
(3) On November 19, 1986, Western denied the griev-
ance.
(4) On November 26, 1986, AFA submitted the dispute
to Western’s System Board of Adjustment pursuant to
Section 24 of the collective bargaining agreement, and
Western refused to arbitrate. Section 24(D), established
under 45 U.S.C. § 184 of the RLA, provides for jurisdiction
in the System Board over disputes ‘‘growing out of griev-
ances or out of interpretation of application of any of the
terms of the” collective bargaining agreement but ‘‘shall
not extend to change in hours of employment, rates of
compensation or working conditions....”’
(5) On December 11, 1986,_ the U.S. Department of
Transportation gave final approval to the Agreement and
Plan of Merger under the Federal Aviation Act.
(6) On December 18, 1986, as the first step looking to-
ward merger, Delta acquired [2] 100% control of Western
and became its parent.
(7) On January 8, 1987, AFA filed its complaint with
this Court. Western’s motion to transfer the case to the
U.S. District Court for the Middle District of California’
was denied on January 20, 1987, and the motions now
before the Court were promptly filed and opposed.
(8) In Section 5.9 of the Agreement and Plan of Merger,
Delta and Western agreed that Western would continue
to honor its 1984 collective bargaining agreement with
‘ Unions certified as representing Western employees engaged in other
crafts are raising comparable issues there.
29a
AFA while it was a separate company under Delta’s con-
trol. This has been done and there is no claim to the
contrary. No layoffs are contemplated, either before or
after the merger. If Western merges as planned into Delta
on April 1, 1987, all Western flight attendants presently
represented by AFA will become employees of Delta, sup-
plementing and combining with Delta’s much larger com-
plement of flight attendants. Significantly higher wages
and benefits will be paid flight attendants now represented
by AFA when they are Delta employees but, of course,
they will be subject to Delta’s own procedures, policies
and rules governing fliyht attendants.’
(9) AFA’s 1984 collective bargaining agreement with
Western stated in Section 1(C):
This Agreement shall be binding on any successor or
merged Company or Companies, or any successor in the
control of the Company, its parent(s) or subsidiary(ies) un-
til changed in accordance with the provisions of the Rail-
way Labor Act, as amended. (Emphasis added.)
The Contentions of the Parties
If the merger occurs on April 1, 1987, AFA’s certifi-
cation as the bargaining representative for flight attend-
ants formerly employed by Western who become Delta
employees will automatically be extinguished pursuant to
the National Mediation Board’s established policy.*
‘In addition, Delta has voluntarily provided significant labor protec-
tive commitments to the Western flight attendants.
’ Where two airlines are merged to form a single transportation sys-
tem the National Mediation Board, to promote stable labor relations
and remove problems of uneven representation, redundancy and con-
fusion, considers the certification of all unions representing the em-
ployees of the acquired airline as extinguished on the date of integration.
See Northwest Airlines, Inc., 13 N.M.B. 399, 400-01 (1986); Republic
Airlines, Inc., 8 N.M.B. 49, 54-56 (1980). See also Air Line Employees
Assoc., Int'l v. Republic Airlines, Inc., 798 F.2d 967, 968-69 n. 4 (7th
30a
Characterizing the controversy as simply a “‘minor’’ dis-
pute involving the proper interpretation of Section 1(C)*
and therefore appropriate for resolution by Western’s Sys-
tem Board of Adjustment, AFA contends that Section 1(C)
does not allow its collective bargaining agreement to be
extinguished, but rather requires Western ‘‘to bind any
successor or parent to that Agreement,’ by providing as
a condition to merger that after the merger takes place
Delta accept and be bound by the terms of AFA’s 1984
collectively bargained agreement with Western. AFA
seeks an order from this Court directing Western to sub-
mit the issue to the System Board of Adjustment and asks
the Court thereafter to retain jurisdiction to enforce com-
pliance with any award the System Board makes against
Western. If a prompt award is not made the Court is
further requested to preserve the status quo by preventing
the merger pending completion of proceedings before the
System Board.
Western contends that the 1984 collective bargaining
agreement is subject to change in accordance with re-
quirements of the RLA as paragraph 1(C) states, noting
that by operation of the RLA AFA’s certifica- [3] tion as
the bargaining representative of Western employees must
dissolve with the merger. It also contends that a funda-
mental question of post-merger representation is pre-
sented, and that since issues of representation are current
and directly involved the System Board lacks jurisdiction
under the RLA and the issues fall under the exclusive
jurisdiction of the National Mediation Board.
Cir.1986), cert. denied, US. , 107 S.Ct 458, 93 L.Ed.2d 404
(1986); International Bhd. of Teamsters v. Texas Int'l Airlines, Inc.,
717 F.2d 157, 163 (5th Cir.1983).
‘See Elgin, J. & E. Ry. v. Burley, 325 U.S. 711, 723-25, 65 S.Ct.
1282, 1289-1290, 89 L.Ed. 1886 (1945).
> Complaint, q 17.
* Complaint, q 18.
3la
Discussion
The situation presented by these conflicting positions is
not one of first impression. Other federal courts have con-
fronted similar labor disputes and their consistent recog-
nition of the primary role of the National Mediation Board
in resolving questions of representation has governed. Pur-
suant to the RLA, 45 U.S.C. §§ 155, 181 and 183, Con-
gress has clearly relegated all cases involving the
representation of airline employees for collective bargain-
ing purposes to the exclusive jurisdiction of the National
Mediation Board. See General Committee of Adjustment v.
Missourt-K.-T. Ry., 320 U.S. 323, 335-38, 64 S.Ct. 146,
151-53, 88 L.Ed. 76 (1943); Switchmen’s Union v. National
Mediation Board, 320 U.S. 297, 303-07, 64 S.Ct. 95, 98-
100, 88 L.Ed. 61 (1948); International Brotherhood of
Teamsters v. Texas International Airlines, Inc., 717 F.2d
157, 161-62 (5th Cir.1983); Air Line Pilots Association v.
Teras International Airlines, Inc., 656 F.2d 16, 22-24 (2d
Cir.1981). See also 9 T. Kheel, Labor Law § 50.07(2] (1986).
Where both representational issues and ‘“‘minor’’ dis-
putes which arguably may not involve representational is-
sues are involved in a single dispute, it is not the role of
a court to attempt to define such minor issues and require
they be segregated for evaluation by the System Board.
As a practical matter the issues inevitably overlap, and
any attempt to divide jurisdiction between the System
Board and the National Mediation Board would defeat the
purposes of the RLA.’ This is particularly true in merger
situations where representational issues inevitably arise and
it is ‘‘impossible to look only to the existence of a collective
* See International Bhd. of Teamsters, supra, 717 F.2d at 164 (‘‘Given
the [National] Mediation Board’s undeniable sole jurisdiction over rep-
resentation matters, we infer from the practical problems of divided
jurisdiction a congressional intention to allow that agency alone to
consider the post-merger problems that arise from existing collective
bargaining agreements’).
32a
bargaining agreement and to isolate it from the other op-
erational and representational matters.’”’ International
Brotherhood of Teamsters, supra, 717 F.2d at 163. Thus,
in cases presenting union challenges to airline mergers,
“(wJhere a representation dispute appears on the face of
the complaint .. . the court is bound to dismiss the action.”’
Air Line Pilots Association, International, supra 656 F.2d
at 24 (citing Ruby v. American Airlines, Inc., 323 F.2d
248 (2d Cir.1963) (Friendly, J.), cert. denied, 376 U.S. 9138,
84 S.Ct. 658, 11 L.Ed.2d 611 (1964)).
There can be no question that the issue of post-merger
representation is presented by this dispute. AFA itself
recognized in its memorandum in support of summary
judgment that a System Board arbitrator might bind Delta
to the 1984 agreement “‘if it wants to proceed with an
operational merger,’’ or might otherwise take action that
would require Delta, a non-party to the 1984 agreement,
to set Western’s flight attendants apart from Delta's flight
attendants regardless of operational requirements.®
For AFA to characterize this as a minor dispute wholly
within the province of the System Board ignores the real-
ity of the situation and constitutes an attempt to circum-
vent procedures clearly mandated by Congress for
resolution of disputes by the National Mediation Board
under the RLA. See, e.g., Air Line Employees Association,
International v. Republic Airlines, Inc., 798 F.2d 967, 968-
69 (7th Cir.1986) (per curiam), cert. denied, —— USS.
__., 107 S.Ct. 458, 98 L.Ed.2d 404 (1986); International
Brotherhood of Teamsters, supra, 717 F.2d at 160-61; Air
Line Pilots Asso- [4] ciation, International, supra, 656 F.2d
at 23-24.
Conclusion
AFA is entitled to no relief from this Court, and its
motion for summary judgment is denied. Western is
* Plaintiff's Memorandum at 25.
33a
granted summary judgment and the complaint is dismissed
with prejudice. An appropriate Order is filed herewith.
34a
APPENDIX E
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFOPNIA
Case No. CV 86-7921 JMI (Px)
FILED
FEB 13 1987
INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,
et al.,
Plaintiffs,
Cr
WESTERN AIR LINES, INC., e¢ al.,
Defendants.
ORDER DENYING PLAINTIFFS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT; ORDER
GRANTING DEFENDANTS’ MOTION TO DISMISS
FOR LACK OF JURISDICTION
This matter came regularly before the Honorable James
M. Ideman, United States District Judge, for considera-
tion. After full consideration of the moving and responding
papers, and the file in the case, IT IS HEREBY ORDERED
as follows:
1. Plaintiffs’ Motion for Partial Summary Judgment is
DENIED.
2. Defendants’ Motion to Dismiss for lack of jurisdiction
is GRANTED without prejudice.
It is the duty of the National Mediation Board (here-
inafter ‘‘NMB’’) to investigate all disputes regarding em-
35a
ployee representatives. 29 C.F.R. § 1203.2. In the present
case, the dispute is between the carrier (Western) and the
union (the employee representative). The Supreme Court
has held that the jurisdiction of the NMB over represen-
tation disputes under the Act is exclusive and the decisions
of the NMB are representation matters and not subject
to judicial review. Switchman’s Union v. National Media-
tion Board, 320 U.S. 297, 64 S.Ct. 95, 98-100 (1943); Gen-
eral Committee v. Missouri-Kansas-Texas Railroad, 320
U.S. 323 (1943). Federal Courts may not intervene in a
representation dispute but must disclaim jurisdiction and
leave to the NMB, the protection of the conditions nec-
essary to insure employee free choice. Texador v. Suressa,
590 F.2d 357 (1st Cir. 1978); Aircraft Fraternal Associ-
ation v. United Airlines, Inc., 406 F. Supp. 492 (N.D. Cal.
1976).
In the following cases, the Court dismissed the action
since a representation issue was raised which was within
the exclusive jurisdiction of the NMB. In Airline Employ-
ees Associations v. Republic Airlines, Inc., 798 F.2d 967,
968 (7th Cir. 1986), cert. denied, 55 U.S.L.W. 3358 (No-
vember 18, 1986), the Court held that the union’s action
for expedited arbitration of a grievance and an injunction
pending arbitration in a merger case raised representation
issues. Similarly, in Teamsters v. Texas International Air-
lines, Inc., 717 F.2d 157, 158 (5th Cir. 1983), the Court
held that an action by a union seeking a declaration that
its contract survived a merger raised an issue of repre-
sentation.
Similarly, in the present case the union’s action for an
injunction and arbitration of a grievance in a merger, raises
a representation issue. Therefore, the Court declines ju-
risdiction since representation disputes are within the ex-
clusive jurisdiction of the NMB and are not subject to
judicial review.
IT IS SO ORDERED.
36a
DATED: 13 FEB 87
JAMES M. IDEMAN
United States District Judge
37a
APPENDIX F
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
Case No. CV 86-8032 JMI (Bx)
FILED
FEB 13 1987
AIR TRANSPORT EMPLOYEES,
Plaintiffs,
V.
WESTERN AIR LINES, INC.,
Derendants.
ORDER DISMISSING THE ACTION FOR LACK OF
JURISDICTION
This matter came regularly before the Honorable James
M. Ideman, United States District Judge, for considera-
tion. After full consideration of the file in the case, IT IS
HEREBY ORDERED as follows:
1. The Court sua sponte dismisses the instant action for
lack of subject matter jurisdiction, without prejudice. The
Court finds that the present action raises a representation
issue, which is within the exclusive jurisdiction of National
Mediation Board (hereinafter ‘“NMB’’).
2. On January 21, 1987, the Court issued an Order to
Show Cause Re Dismissal, whereby the parties were in-
structed to respond to the Court’s Order on or before
January 28, 1987. However, the parties have failed to show
cause as to why the action should not be dismissed. Ac-
cordingly, the Court declines jurisdiction since represen-
tation disputes are within the exclusive jurisdiction of the
NMB and are not subject to judicial review.
38a
IT IS SO ORDERED.
DATED: 31 Feb 87
JAMES M. IDEMAN
United States District Judge
39a
APPENDIX G
SUPREME COURT OF THE UNITED STATES
No. A-716
WESTERN AIRLINES, INC., et al.,
Applicants,
2
IBTCWHA, LOCAL Union No. 2702, et al.
ORDER
UPON CONSIDERATION of the application of counsel for
the applicants,
IT IS ORDERED that the injunction issued by the United
States Court of Appeals for the Ninth Circuit on March
31, 1987,-case Nos. 87-5657 and 87-5667, be, and the same
is hereby, stayed pending the timely filing and disposition
of a petition for a writ of certiorari. Should the petition
for a writ of certiorari be denied, this stay terminates
automatically. In the event the petition for a writ of
certiorari is granted, this stay shall continue pending the
sending down of the judgment of this Court.
/s/ SANDRA Day O'CONNOR
Associate Justice of the Supreme Court
of the United States
Dated this lst
day of April, 1987
40a
SUPREME COURT OF THE UNITED STATES
No. A-716
WESTERN AIRLINES, INC., ef al.,
Applicants,
Vv.
INTERNATIONAL BROTHERHOOD OF TEAMSTERS
AND AIR TRANSPORT EMPLOYEES
AMENDED ORDER
UPON CONSIDERATION of the application of counsel for
the applicants,
IT IS ORDERED that the injunction and order compelling
arbitration before the Systems Boards issued by the United
States Court of Appeals for the Ninth Circuit on March
31, 1987, case Nos. 87-5657 and 87-5667, be, and the sarne
are hereby, stayed pending the timely filing and disposition
of a petition for a writ of certiorari. Should the petition
for a writ of certiorari be denied, this stay terminates
automatically. In the event the petition for a writ of
certiorari is granted, this stay shall continue pending the
sending down of the judgment of this Court.
/s/ SANDRA _D. O’CONNOR
Associate Justice of the Supreme Court
of the United States
Dated this 2nd
day of April, 1987.
4la
APPENDIX H
SUPREME COURT OF THE UNITED STATES
No. A-716
WESTERN AIRLINES, INC., ET AL. v. INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, ET AL.
ON APPLICATION FOR STAY
Decided April 2, 1987
[1302]
JUSTICE O'CONNOR, Circuit Justice.
Applicants request that I issue a stay pending the filing
and disposition of a petition for certiorari to review the
judgment of the United States Court of Appeals for the
Ninth Circuit.
The underlying dispute in this case involves the division
of responsibility for regulation of collective bargaining be-
tween airlines and their employees under the Railway La-
bor Act, 44 Stat. 577, 45 U.S.C. §151 et seg. The Act
defines three classes of labor disputes and establishes a
different dispute resolution procedure for each. ‘Minor’
disputes involve the application or interpretation of an ex-
isting collective-bargaining agreement. Minor disputes are
subject to arbitration by a System Board of Adjustment.
45 U.S.C. §184. While courts lack authority to interpret
the terms of a collective-bargaining agreement, a court
may compel arbitration of a minor dispute before the au-
thorized System Board.
‘““Major’’ disputes involve the formation of collective-bar-
gaining agreements, and the resolution of such disputes is
governed by §6 of the Act, 45 U.S.C. §§156, 181.
42a
‘‘Representation” disputes involve defining the bargain-
ing unit and determining the employee representative for
collective bargaining. Under §2, Ninth of the Act, the Na-
tional [1303] Mediation Board has exclusive jurisdiction
over representation disputes. 45 U.S.C. §152, 181.
Applicants, Western Airlines and Delta Air Lines, en-
tered into an agreement and plan of merger on September
9, 1986. The merger agreement was approved by the
United States Department of Transportation on December
11, 1986. On December 16, 1986, shareholder approval of
the merger was conferred and Western Airlines became
a wholly-owned subsidiary of Delta. On the morning of
April 1, 1987, the merger of Western Airlines with Delta
was scheduled to be completed. See infra, at 1308.
Respondents represented various crafts or classes of em-
ployees of Western Airlines. The Air Transport Employees
(ATE) was designated by the National Mediation Board as
the bargaining representative for a unit of Western em-
ployees consisting of clerical, office, fleet and passenger
service employees. The International Brotherhood of
Teamsters Local 2707 was the certified representative of
three crafts or classes employed by Western: mechanics
and related employees, stock clerks, and flight instructors.
Each union’s collective-bargaining agreement has a pro-
vision stating that the agreement shall be binding upon
successors of the company.
Delta has substantially more employees than Western in
the crafts or classes represented by the unions, and these
Delta employees had no bargaining representative.
Respondents filed grievances alleging that Western vio-
lated the successorship provisions of the two collective-
bargaining agreements by failing to secure Delta’s agree-
ment to be bound by the collective-bargaining agreements
between Western and respondent unions. Western refused
to arbitrate the grievances, asserting that they necessarily
43a
involved representation issues and therefore were within
the exclusive jurisdiction of the National Mediation Board.
The unions filed separate complaints in the District Court
for the Central District of California, each requesting the
(1304] District Court to treat the successor clause dispute
as a minor dispute, and compel arbitration of the dispute
by the System Adjustment Board. Both complaints were
dismissed for lack of subject matter jurisdiction.
On March 17, 1987, the Court of Appeals for the Ninth
Circuit entered an interim order directing arbitration of
the grievances to proceed before the unions’ respective
System Adjustment Boards pending appeal.
At approximately 8:00 p.m. Eastern Time, March 31—
little more than 12 hours before the merger was scheduled
to take place—the Court of Appeals for the Ninth Circuit
issued the following order:
“1. The judgments of the district court dismissing
the unions’ actions are reversed and the causes are
remanded with instructions to enter orders compelling
arbitration.
‘2. Western’s motion for reconsideration of our or-
der compelling arbitration pending appeal is denied.
‘3. The contemplated merger of Western Air Lines
and Delta Air Lines is enjoined pending completion
of arbitration proceedings or until Western and Delta
file with the Clerk of this Court a stipulation that the
result of the arbitration, subject to appropriate judicial
review and all valid defenses, will bind the successor
corporation. Upon filing of such stipulation and ap-
proval by the court, the injunction of the merger shall
terminate.
It is so ordered. A written opinion will be filed as
soon as practicable.’ Application Exh. 4.
44a
The timing and substance of the Court of Appeal’s order
under the exigencies of this case made compliance with
Rule 44.4 of this Court, requiring that a motion for a stay
first be filed with the court below, both virtually impossible
and legally futile. I conclude that this situation presents
one of those rare extraordinary circumstances in which
request for [1305] a stay before the Court of Appeals is
not required under the Rule.
I also conclude that the judgment of the Court of
Appeals, reversing the district court decisions, requiring
the entry of orders compelling arbitration, and enjoining
the merger, is final within the meaning of 28 U.S.C.
§2101(f). The Court of Appeal’s provision for lifting the
injunction upon certain stipulations of applicants does not
divest the judgment of finality when, as in this case, the
required stipulations, to have any significance, must bind
applicants to a concession of their position on the only
question before the Court of Appeals: whether the suc-
cessor clause dispute is within the jurisdiction of the Sys-
tem Adjustment Board or the National Mediation Board.
Moreover, regardless of the finality of the judgment
below, “‘a Circuit Justice has jurisdiction to vacate a stay
where it appears that the rights of the parties to a case
pending in the court of appeals, which case could and very
likely would be reviewed here upon final disposition in the
court of appeals, may be seriously and irreparably injured
by the stay, and the Circuit Justice is of the opinion that
the court of appeals is demonstrably wrong in its appli-
cation of accepted standards in deciding to issue the stay.”’
Coleman v. Paccar, Inc., 424 U.S. 1301 (1976) (REHNQUIST,
J., in chambers).
The reasoning of every other Court of Appeals that has
ruled on the issue raised before the Ninth Circuit casts
grave doubt on the validity of the Ninth Circuit’s action
in this case. The great weight of the case law supports
the proposition that disputes as to the effect of collective-
45a
bargaining agreements on representation in an airline
merger situation are representation disputes within the
exclusive jurisdiction of the National Mediation Board. In
International Brotherhood of Teamsters v. Texas Interna-
tional Airlines, Inc., 717 F. 2d 157 (CA5 1983), the Court
of Appeals for the Fifth Circuit held that ‘(t]he [Railway
Labor] Act commits disputes involving a determination of
who is to represent airline employ- [1306] ees in collective
bargaining to the exclusive jurisdiction of the National Me-
diation Board.’”’ The Fifth Circuit stated, ‘“‘A court may
not entertain an action involving such a dispute even if it
arises in the context of otherwise justiciable claims. More-
over, a court may not grant injunctive relief maintaining
the status quo if the underlying dispute is representational
in nature, because to do so would necessarily have the
effect, at least during the period of the injunction, of de-
ciding the representation issue.”’ Jd., at 161. ‘Given the
Mediation Board’s undeniable sole jurisdiction over rep-
resentation matters,” and the practical problems of divided
jurisdiction among the other dispute-resolution fora, the
Fifth Circuit inferred ‘‘a congressional intention to allow
that agency alone to consider the post-merger problems
that arise from existing collective bargaining agreements.”’
Id., at 164. The Court of Appeals for the Seventh Circuit
treated the question of National Mediation Board jurisdic-
tion over alleged collective bargaining violations implicat-
ing post-merger representation as one settled by ‘‘the
overwhelming and well-developed case law,’’ and found ‘‘no
reason to depart from the consistent and well-considered
analysis of our colleagues in other circuits.”’ Air Line Em-
ployees v. Republic Airlines, Inc., 798 F.2d 967, 968 (quot-
ing Order No. 86C5239 (N.D. Ill. July 28, 1986)), cert.
denied, 479 U.S. 962 (1986). See also Air Line Pilots Ass’n
Int'l v. Texas Int'l Airlines, 656 F. 2d 16 (CA2 1981);
International Ass’n of Machinists v. Northeast Airlines,
Inc., 536 F. 2d 975, 977 (CA1), cert. denied, 429 U.S. 961
(1976); Brotherhood of Ry. & S.S. Clerks v. United Air
46a
Lines, Inc., 325 F. 2d 576 (CA6 1963), cert. dismissed,
379 U.S. 26 (1964). It was upon this overwhelming body
of case law that the District Court for the District of
Columbia relied when it considered the complaint of the
_ Association of Flight Attendants (AFA), also arising from
the Western-Delta merger. AFA’s complaint, seeking an
order compelling Western to submit to arbitration by the
System Board of Adjustment and enjoining [1307] the
merger pending completion of proceedings before the Sys-
tem Board, was dismissed. Association of Flight Attend-
ants, AFL-CIO v. Western Airlines, Inc., No. 87-0040 (D
DC February 20, 1987). On March 31, 1987 the Court of
Appeals for the District of Columbia Circuit denied AFA’s
motions to compel arbitration pending appeal, and its mo-
tion for expedited appeal and decision before April 1. As-
sociation of Flight Attendants, AFL-CIO v. Western
Airlines, Inc., No. 87-7040. The Ninth Circuit’s divergence
from this line of Court of Appeals decisions leads me to
find it very likely that at least four Justices would vote
to grant certiorari, and that the applicant is likely to pre-
vail on the merits.
To appreciate the balance of the equities created by the
Ninth Circuit’s order, one must focus on the stipulation
clause of that order. What was to be gained or lost by
the applicants and respondents in this case was not the
merger of Western and Delta Airlines alone but the sub-
stance of the stipulation on which that merger was con-
ditioned by the Ninth Circuit.
The stipulation which the Ninth Circuit required from
Western and Delta Airlines is subject to two interpreta-
tions. The first is a requirement that Delta and Western
agree that if, after full judicial review of the jurisdictional
as well as other issues raised, it is determined that the
claims presented by the respondents fall under the juris-
diction of the System Adjustment Board, the successor
corporation will be bound by the result of the completed
arbitration process. Under this interpretation of the stip-
47a
ulation, the successor corporation was required to do no
more than adhere to the obligations placed upon it by law,
as those obligations are determined in the litigation. Those
legal obligations, of course, would exist independent of any
stipulation. If the stipulation would leave the applicants
free to assert any of their arguments against the juris-
diction of the System Adjustment Boards, the applicants
would have remained in the [1308] same position after the
stipulation as they were before, and the stipulation would
have served no purpose.
The other interpretation of the clause is that, in order
to avoid an eleventh hour injunction of the merger, Delta
and Western were required to stipulate as to the cor-
rectness of respondents’ argument that this dispute did in
fact fall under the jurisdiction of the Systems Adjustment
Board. As to the balance of equities on this interpretation
of the Ninth Circuit’s order, they clearly weigh in favor
of the applicants. The potential harm that would be suf-
fered by applicants as a result of the Court of Appeals’
injunction of their merger is seriously aggravated by the
fact that the order issued on the very eve of the merger’s
consummation. For several months, applicants have been
planning to combine their large-scale, complex, inter-re-
lated and heavily regulated operations effective April 1,
1987. That planning included the transfer, modification and
cancellation of hundreds of Western’s contracts for sup-
plies and services and equipment leases. The approval of
the Federal Aviation Administration of changes in West-
ern’s operating certificates, specifications and training pro-
grams have been sought and received. Maintenance
schedules, flight schedules and staffing schedules have been
modified in order to effect a smooth transition to a merged
operation on April 1. Large numbers of Western man-
agement personnel, without whom it cannot operate as an
independent entity, are to be severed effective April 1;
many have presumably arranged for new employment.
Delta has negotiated for transfer of Western's Mexican
48a
and Canadian routes with the respective governments of
those countries. It is doubtful that these arrangements car
be undone if the merger does not take place as anticipated.
Because of the operational adjustments that are already
in place, the FAA has expressed doubt whether Western
will be permitted to continue operations should the merger
not take place, potentially stranding thousands of travel-
ers. [1309] Employees, expecting to be transferred to new
locations after April 1, have sold old homes and bought
or leased new ones. Changes in pay, working conditions,
and conditions of employment all have been planned for
and relied upon in anticipation of the merger. Millions of
dollars of advertising have been targeted toward the April
1, 1987 merger date. And the list of consequences goes
on. See Emergency Application for Stay and Vacation of
Injunction, Affidavit of Hollis Harris and Exhibit 1 thereof:
Affidavit of Robert Oppenlander; Affidavit of Russell H.
Heil; Affidavit of Whitley Hawkins; Affidavit of C. Julian
May; Affidavit of Jason R. Archambeau. The cost of en-
joining this huge undertaking only hours before its long
awaited consummation is simply staggering in its magni-
tude, in the number of lives touched and dollars lost. To
assume that enjoining of the merger would do no more
than preserve the ‘‘status quo,” in the face of this up-
heaval, would be to blink at reality. Under the second
interpretation of the stipulation clause—the only interpre-
tation under which the required stipulations would have
had meaning—applicants could prevent these losses only
by conceding their argument, supported by the great
weight of authority, that their dispute with respondents
fell under the jurisdiction of the National Mediation Board.
On the other side, respondents had no entitlement to such
a concession, obtained under these circumstances, from
parties that had otherwise indicated their intent to con-
tinue to assert the contrary position on the jurisdictional
issue. Before the Court of Appeals the unions argued that
completion of the merger would moot their claims under
49a
the collective-bargaining agreement to System Board ar-
bitration. For the reasons stated above, I doubt that
respondents’ claims would ultimately prevail. Moreover,
preservation of respondents’ claims could have been ac-
complished equitably by a speedier resolution of the juris-
dictional issue, rather than by the inequitable last-minute
foisting of a Hobson’s choice on applicants. Finally, the
employees themselves are protected by Delta’s assumption
of the Allegheny-Mohawk Labor Protec- [1310] tive Pro-
visions, requiring the continuation of certain fringe ben-
efits, displacement and dismissal allowances for up to four
to five years for employees who lose their jobs or get
lesser-paying jobs, moving and related cosis ior employees
required to move, integration of seniority lists and binding
arbitration of any dispute relating to the labor protective
provisions. See Allegheny-Mohawk Merger Case, 59 C. A.
B. 22 (1972); Heil Affidavit, 46.
Because the stipulation upon which the lifting of the
injunction was conditioned appears to be either unneces-
sary or extremely inequitable, depending upon its inter-
pretation, and because it appears to me likely that at least
four Justices would vote to grant certiorari and that the
applicants are likely to prevail on the merits, I grant the
requested stay of the Court of Appeals for the Ninth Cir-
cult's injunction and order compelling arbitration before
the System Boards, pending the timely filing and subse-
quent disposition of a writ of certiorari in this case. -
50a
APPENDIX I
NATIONAL MEDIATION BOARD
WASHINGTON, D.C. 20572
14 NMB No. 86
FILE NO. C-5955
[291] In the matter of
the merger of
DELTA AIR LINES, INC.
and
WESTERN AIR LINES, INC.
TERMINATION OF
CERTIFICATIONS
(WESTERN AIR LINES)
July 9, 1987
On April 20, 1987, the National Mediation Board (Board)
received a request from Delta Air Lines, Inc. (Delta) in-
voking the Board’s services ‘‘to determine whether the
Board’s certifications of the Western labor organizations
as collective bargaining representatives of the various
crafts or classes at Western have been extinguished or
terminated effective April 1, 1987.’’ Delta’s request was
made in accordance with Trans World Airlines/Ozark Air
Lines, 14 NMB 218 (1987).
Review of the Board’s records reveals that several labor
organizations were certified to represent various crafts or
classes at Western Air Lines, Inc. (Western). In R-4995,
5la
the Air Transport Employees was certified to represent
the craft or class of Office, Clerical, Fleet & Passenger
Service Employees. The Association of Flight Attendants
was certified to represent the craft or class of Flight At-
tendants in R-3665. The International Brotherhood of
Teamsters was certified to represent the crafts or classes
of Instructors (R-4785), Mechanics and Related Employees ~
(R-3951) and Stock Clerks (R-3788). The Air Line Pilots
Association represents the craft or class of Pilots pursuant
to voluntary recognition.
On Delta the Pilots are represented by ALPA.The craft
or class of Dispatchers is represented by the Professional
Airline Flight Control Association pursuant to certification
in R-4254.
[292] The Board, on April 23, 1987, directed Delta and
Western to furnish certain information on the present op-
erations of the airlines. Delta and the involved labor or-
ganizations submitted responses. Pursuant to the Board’s
request Delta submitted additional information on May 21,
1987, as well as June 16 and 22, 1987.
ISSUES
The following issues are before the Board:
1) Whether Delta and Western combined to form a sin-
gle transportation system, for purposes of the Railway
Labor Act, on April 1, 1987 and;
2) If a single transportation system was created, what
affect if any does this have on the representation certi-
fications of the organizations at Western and when did
the affect occur?
PENDING LITIGATION
An issue arose from grievance actions filed by ATE,
IBT and AFA prior to April 1, 1987. In those actions the
—
unions sought te compel arbitration of grievances under
their labor agreements with Western, alleging breach of
successorship clauses in connection with the then-proposed
merger of Western into Delta. The unions alleged that
Western violated those clauses by failing to secure Delta’s
agreement to be bound by the unions’ contracts after the
merger was completed. Western refused to submit to ar-
bitration contending that it might result in a decision on
representation of Delta employees after the merger. Rep-
resentation matters, Delta asserted, are within the exclu-
sive jurisdiction of the Board.
52a
The unions filed actions in the district court for injunc-
tions to compel arbitration. ATE and the IBT filed such
action in the United Stated District Court for the Central
District of California while AFA sought relief in the United
States District Court for the District of Columbia. In all
instances, the district courts denied the unions the relief
requested. However, on appeal, the United States Court
of Appeals for the Ninth Circuit, on March 31, 1987, [293]
ordered the IBT and Western to ‘‘select an arbitrator to
decide the merits of the parties’ disagreement over the
interpretation of their collective bargaining agreement.’’
The merger was also enjoined. IBT v. Western Air Lines,
Inc., Civil No. 87-5657 (9th Cir., March 17, 1987). A similar
ruling regarding Western and ATE was made in ATE v.
Western Air Lines, Inc., Civil No. 87-5667 (9th Cir. March
17, 1987). AFA unsuccessfully appealed the decision of the
District Court to the Circuit for the District of Columbia.
On April 1, 1987, the Honorable Sandra Day O’Connor,
the Circuit Justice for the Ninth Circuit, stayed the orders
of the Ninth Circuit pending the filing and disposition of
a petition for certiorari to review the judgment of the
Ninth Circuit. A Petition for Writ of Certiorari was filed
by Delta on May 20, 1987.
53a
CONTENTIONS
Delta
Delta contends that Western merged with it on April
1, 1987, and ceased to exist on that date. Therefore, Delta
concludes that the certifications of the Western labor or-
ganizations were extinguished or terminated as of April
1, 1987.
Air Line Pilots Association (ALPA)
ALPA which represented pilots on both airlines has not
taken a position on this matter.
Air Transport Employees (ATE)
ATE contends that before the Board can resolve the
question of a merger, the agency must first decide whether
it ‘“‘has exclusive jurisdiction to resolve disputes over the
obligations of carriers under a successorsnip clause.’’ The
organization requests that the Board ‘‘proceed to order an
arbitration to resolve the interpretation of the successor-
ship clause in the ATE-Western agreement.” If the Board
decides that it does not have the jurisdiction, ATE argues
that the Board should state so in a very definitive manner
and also state that the application of the successorship
(294] clause in the ATE-Western agreement would not
impinge on representation matters which are within the
exclusive jurisdiction of the Board. ATE asserts that the
Board should state that its certification is ‘‘in effect’’ until
the successorship question has been resolved through ar-
bitration or an election has been held. Citing Continental
Airlines, 10 NMB 25 (1982) for the proposition that the
Board has permitted the recognition of two contracts and
two labor organizations in a single craft or class pending
an election, ATE argues that such action would not cir-
cumvent any provision of the Act.
54a
International Brotherhood of Teamsters (IBT)
It is the IBT’s position that its certifications cannot be
terminated because there are outstanding contractual is- a
sues which are outcome determinative and the Board
should not terminate certifications without an election. The
IBT’s position is based on two arguments. First, the IBT
argues that due process considerations and relevant Board
criteria ‘“‘counsel”’ against termination of the union’s cert-
ifications. In support of this argument, the IBT makes the
following points:
1. Factual developments after April 1 would be
radically different if the adjustment board
[system board] proceeding had not been inter-
rupted and the Union had prevailed.
2. Carriers must be made to understand that an
Operational integration conducted in violation
of outstanding contractual obligations will not
furnish grounds for termination of existing
certifications.
3. It would violate the Union’s due process rights
for the Board to give conclusive effect to the
Carriers’ actions that occurred only because
of a legal proceeding in which the Union was
not allowed to participate.
[295]
4. It is wrong to allow actions undertaken under
a temporary order to have ‘“‘decisional signif-
icance.”’ On this point, the IBT contends that
the Carrier’s object in this proceeding is to
obtain a determination from the Board that
the Union’s certifications terminated, effective
April 1, 1987, so they can conclude that West-
ern’s agreements are extinguished. This will
enable them to claim that the Teamsters’ legal
case has been rendered moot by intervening
55a
events, i.e., the Board’s decision. Thus, the
Ninth Circuit Court of Appeals’ judgment and
order must be vacated and the case dismissed.
5. Because of the pending litigation, the Board’s
relevant criteria as developed in TWA/Ozark
cannot be fairly or accurately applied at the
present time.
Second, the IBT argues that the Board should not ter-
minate certifications, thereby allowing represented em-
ployees to become’ unrepresented, without first
investigating the employees’ representation desires. In this
case, termination of certificates is inconsistent with the
scheme of the Act because it presumes that a majority of
employees in the post-merger craft or class reject repre-
sentation based solely on the fact that a majority of craft
or class employees on the acquiring carrier as it existed
prior to the merger, have not selected a representative.
Because of the unique circumstances of this case, termi-
nation of the certification effectively would constitute de-
certification.
Association of Flight Attendants (AFA)
AFA believes that the Board should rule that “AFA’s
certificate should be maintained pending final resolution
of AFA’s successorship claim.’’ The unresolved question
of the survivability of the col- [296] lective bargaining
agreement is crucial to any Board determina
This text is long and has been trimmed here. Open the source document for the complete record.
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