Amicus Curiae Brief — American Railway & Airway Supervisors Ass'n v. Soo Line Railroad

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In the Supreme Court of the United

OCTOBER TERM, 1990

AMERICAN RAILWAY AND AIRWAY SUPERVISORS

ASSOCIATION, ET AL., PETITIONERS

Uv.

Soo LINE RAILROAD COMPANY

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

KENNETH W. STARR

Solicitor General

STUART M. GERSON

Assistant Attorney General

DAVID L. SHAPIRO

Deputy Solicitor General

ROBERT A. LONG, JR.

Assistant to the Solicitor General

WILLIAM KANTER

Marc RICHMAN

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTION PRESENTED

Whether a party to a nationwide bargaining agree-

ment under the Railway Labor Act may decide, prior to

commencement of bargaining over proposed changes to

the railroad industry’s national health and welfare plans,

that it will not participate in national bargaining but in-

stead will negotiate separately over its proposal to with-

draw from the national plans.

(1)

TABLE OF CONTENTS

Page

ES RE 1

a 9

NE 17

TABLE OF AUTHORITIES

Cases:

Brotherhood of R.R. Trainmen v. Atlantic Coast

Line R.R., 383 F.2d 225 (D.C. Cir. 1967), cert.

denied, 389 U.S. 1047 (1968) .............................. 7, 14, 15

Brotherhood of R.R. Trainmen vy. Jacksonville

Terminal Co., 394 U.S. 369 (1969) .......000.... 3, 15

Charles D. Bonanno Linen Serv., Inc. v. NLRB,

I ica ceetenennscncwsenenceapeonnes 7, 8,16

Chicago, B. & Q. R.R. Vv. Railway Employes’ Dep't,

301 F. Supp. 603 (D.D.C. 1969) ..................... 3,14

Chicago & N.W. Ry. v. UTU, 402 U.S. 570

EE rR 1

EEOC v. United Air Lines, 755 F.2d 94 (7th Cir.

Te ceenicenpepeinneiniieenes 16

IAM v. Reeve Aleutian Airways, 469 F.2d 990

(9th Cir. 1972), cert. denied, 411 U.S. 982

EL AES GS 16

NLRB Vv. Truck Drivers Local Union No. 449, 353

ns cemeetenenebes 16

Pittsburgh & L.E. R.R. vy. RLEA, 109 S. Ct. 2584

NSS i A 2,11

Pullman Co. Vv. Order of Ry. Conductors & Brake-

men, 316 F.2d 556 (7th Cir.), cert. denied, 375

SE 14

Texas & N. O. R.R. v. Brotherhood of Ry. & S.S.

en an, See Clee) -....................... 10

Trans World Airlines, Inc. v. Independent Fed’n

of Flight Attendants, 109 S. Ct. 1225 (1989) -... 15

Trans World Airlines, Inc. v. Independent Fed’n

of Flight Attendanis, 809 F.2d 483 (8th Cir.

1987), aff’d, 485 U.S. 175 (1988).......................... 16

(mI)

Statutes: Page

Railway Labor Act, 45 U.S.C. 151 et seq. -..0000 1

ri I aisle oincnsctiitdiceaesmniebsthoseerenniie 13

§ 2 First, 45 U.S.C. 152 First -........ 1, 6, 12

§ 2 Second, 45 U.S.C. 152 Second |... 12

§ 2 Third, 45 U.S.C. 152 Third ................... 2, 6, 10, 17

§ 2 Fourth, 45 U.S.C. 152 Fourth ....... 10

§ 2 Seventh, 45 U.S.C. 152 Seventh 0... 3

§ 5 First, 45 U.S.C. 155 First —..000002.. 2. 2,3

a aa ee 8 2,3, 16

i NS TINT fos hesrtcsties is Seinsenicbcbciinilb vetshcendanlle 2

BR Se eR Ree oR eC? 3,5

Miscellaneous:

Exec. Order No. 12,714, 55 Fed. Reg. 19,047

GE Te, IID -divscinsnacnsanchinscestotetnbhdeasentaaudnasttoustiman 5

Iu the Supreme Court of the United States

OCTOBER TERM, 1990

No. 89-1435

AMERICAN RAILWAY AND AIRWAY SUPERVISORS

ASSOCIATION, ET AL., PETITIONERS

Vv.

Soo LINE RAILROAD COMPANY

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This brief is submitted in response to the Court’s in-

vitation to the Solicitor General to express the views of

the United States.

STATEMENT

1. Labor relations in the rail and air transportation

industries are governed by the Railway Labor Act, 45

U.S.C. 151 et seg. (RLA or Act). The RLA imposes on

both carriers and employees a duty to “exert every rea-

sonable effort to make and maintain agreements concern-

ing rates of pay, rules, and working conditions * * *.”

45 U.S.C. 152 First. See generally Chicago & N.W. Ry.

v. UTU, 402 U.S. 570, 574-578 (1971).

(1)

The Act establishes a multi-stage process to encourage

the voluntary resolution of major disputes.' Section 6 of

the RLA, 45 U.S.C. 156, provides that a carrier or em-

ployee representative wishing to change an existing col-

lective bargaining agreement must give at least 30 days

written notice “of an intended change in agreements af-

fecting rates of pay, rules, or working conditions * * *.”

Within ten days after receipt of the notice, the parties

must agree upon the time and place for a conference be-

tween the representatives of the parties interested in such

intended changes, and the conference must begin within

the 30-day period set out in the notice. Ibid.

Section 2 Third of the Act, 45 U.S.C. 152 Third, pro-

vides that “representatives * * * shall be designated by

the respective parties without interference, influence, or

coercion by either party over the designation of repre-

sentatives by the other; and neither party shall in any

way interfere with, influence, or coerce the other in its

choice of representatives.” If the conference between car-

rier and employee representatives fails to produce an

agreement, then

either or both [parties] may invoke the services of

the National Mediation Board, which may also

proffer its services sua sponte if it finds a labor

emergency to exist. [45 U.S.C. 155 First.] If me-

diation fails, the Board must endeavor to induce

the parties to submit the controversy to binding

arbitration, which can take place, however, only if

both consent. [45 U.S.C. 155 First, 157.] If arbi-

tration is rejected and the dispute threatens “sub-

stantially to interrupt interstate commerce to a

degree such as to deprive any section of the country

of essential transportation service, the Mediation

1“Major disputes” are disputes about rates of pay, rules, or

working conditions. “Minor disputes” are disputes about the in-

terpretation or application of existing contracts. Minor disputes,

unlike major disputes, are subject to compulsory arbitration. See

Pittsburgh & L.E. R.R. v. RLEA, 109 S.Ct. 2584, 2589 n.4 (1989).

Board shall notify the President,” who may create

an emergency board to investigate and report on the

dispute. [45 U.S.C. 160.] While the dispute is

working its way through these stages, neither party

may unilaterally alter the status quo. [45 U.S.C.

152 Seventh, 155 First, 156, 160. ]

Brotherhood of R.R. Trainmen v. Jacksonville Terminal

Co., 394 U.S. 369, 378 (1969).

2. Since 1954, many rail carriers and rail labor unions

have negotiated national health and welfare plans cover-

ing rail employees.2 Soo Line Railroad Co. (Soo), and

its corporate predecessors, have participated in the na-

tional health and welfare plans since their inception; peti-

tioner unions also participate in the plans. The national

health and welfare plans were developed in national bar-

gaining, also known as “national handling.” * The health

2 The original 1954 agreement resulted in a national group health

and life insurance policy. Subsequent negotiations resulted in a

national dental insurance plan and a national major medical insur-

ance plan for retirees. Pet. 4-5.

3 “National handling” is not defined or even mentioned in the

RLA. The court of appeals stated that “ ‘national handling’ * * *

refers to the collective bargaining practice whereby railroads and

unions give bargaining authority to multi-carrier and multi-union

committees, agreeing in advance to be bound by a national agreement

reached by the two committees.” Pet. App. 2a n.1. The district

court stated that “rail labor unions and rail carriers have generally

negotiated employee benefits on a national basis with designated

national bargaining agents negotiating any changes. This is re-

ferred to as ‘national handling.’” Pet. App. 12a-13a (quoted in Pet.

C.A. Br. 6). In their petition, the unions argue that “there is

nothing inherent in the nature of national handling which requires

the designation of the same bargaining agents” by all carriers.

Pet. 21-22. The unions observe that, until the 1970s, the carriers

were represented by three regional carrier conference committees,

which in turn selected a singie negotiator without authority to bind

the committees. Pet. 21 n.8; see Chicago, B. & Q. R.R. v. Railway

Employes’ Dep’t, 301 F. Supp. 603, 607 (D.D.C. 1969).

As discussed more fully below, we agree with the unions that,

aside from practical concerns about manageability, there is no

and welfare agreements, like most railroad industry

agreements under the RLA, have no fixed duration, but

typically contain “moratorium clauses” that obligate the

parties to refrain from serving Section 6 notices for a

specified period of time. Over the years, the national

health and welfare plans have been modified through the

national bargaining agents designated by the respective

parties. The carriers typically have designated the Na-

tional Carriers’ Conference Committee (NCCC) as their

national bargaining agent, while the unions have also

designated a national bargaining agent such as the

Health and Welfare Committee of the Cooperating Rail-

way Labor Organizations (CRLO). As of 1985, the na-

tional health and welfare plans covered approximately

320,000 active employees of 242 railroads. Pet. App. 2a-

3a, 12a-13a.

In early 1984, petitioner unions, pursuant to Section 6

of the RLA, served notice on Soo and other carriers that

the unions intended to request changes to the national

collective bargaining agreement, including the national

health and welfare plans. Pet. App. 2a. The notices re-

quested that Soo waive its right to conduct direct nego-

tiations with the unions and authorize the NCCC to act

for Soo in national bargaining. Pet. 5; Br. in Opp. 6.

Soo agreed to participate in national bargaining over

some of the proposed anges and to designate NCCC as

its bargaining representative with respect to those pro-

posals. But the railroad informed the unions that it

would not designate NCCC as its bargaining agent with

respect to the proposed changes in the health and welfare

plans, and would not participate in national bargaining

over those proposals. Instead, Soo informed the unions

that it would negotiate separately with the unions over

inherent reason why national bargaining must be conducted with

a single representative on each side. We therefore agree that the

selection of bargaining agents and the choice between national] and

“local” bargaining are distinct issues,

its own proposal to withdraw from the national health

plans in favor of a self-insurance plan.* Pet. App. 13a.

Soo conducted separate negotiations and reached sepa-

rate agreements with 8 of the 19 unions that represent

its employees. Pet. App. 18a-14a & n.3._ The remaining

11 unions, which represent about 90% of Soo’s employees,

refused to enter into separate negotiations with Soo.

Ibid. These unions filed suit in federal district court to

compel Soo to continue its participation in the national

health and welfare plans and to participate in national

bargaining on proposed changes to those programs. Soo

counterclaimed, asserting that petitioner unions were

violating the RLA by refusing to negotiate with Soo’s

designated bargaining representative over employee bene-

fits. Jd. at 12a. The railroad also invoked the mediatory

services of the National Mediation Board (Br. in Opp.

7).° Soo continues to pay premiums on the national

health and welfare plans for its employees represented by

unions with which Soo has not reached a new agreement.

Pet. App. 14a.°

4The unions do not argue that Soo’s decision to appoint the

NCCC as its bargaining agent with respect to some issues but

not others is prohibited by the RLA or the collective bargaining

agreement. Thus, as the court of appeals noted, this case does not

present the question whether “it is a modification of the collective

bargaining agreement to sever the health and welfare issue from

negotiation of wages and working conditions which are still au-

thorized for national bargaining.” Pet. App. 4a n.6.

5 We are informed that mediation has been delayed pending

resolution of this lawsuit.

6On May 3, 1990, pursuant to 45 U.S.C. 160, President Bush

signed an Executive Order creating, effective May 5, a Presidential

Emergency Board to investigate and report on disputes between

most of the nation’s major railroads, represented by the NCCC, and

their employees, represented by 11 unions. Exec. Order No. 12,714,

55 Fed. Reg. 19,047. Hearings before the Emergency Board began

the week of May 14. Although these disputes involve proposed

modifications to the national health and welfare plans, it appears

that the dispute involved in this case is not one of those referred

to the Emergency Board.

3. The district court (Pet. App. 12a-23a) granted

summary judgment for Soo on the unions’ complaint.

The court rejected the unions’ contention that Soo had

violated the RLA by refusing to participate in national

bargaining and by engaging in separate negotiations over

its proposal to withdraw from the national programs.

The district court stated that the case posed two proce-

dural questions: first, who will represent the parties

at the bargaining table, and second, where the bargain-

ing will take place. Jd. at 17a.

With respect to the first question, the court held (Pet.

App. 17a) that the RLA expressly guarantees each party

the right to select its own bargaining representative. 45

U.S.C. 152 Third. The court therefore concluded that

Soo “could not be required to designate the NCCC to

negotiate on its behalf.” Pet. App. 17a. The court ob-

served that the unions “virtually acknowledged that fact

by ‘respectfully requesting’ Soo to designate the NCCC

as its representative.” Jbid. In addition, the court noted,

the choice of a bargaining representative does not appear

to concern rates of pay, rules, or working conditions,

and so is not a subject of mandatory bargaining under

45 U.S.C. 152 First. Pet. App. 17a.

As to the location of the bargaining between Soo’s

designated representative and the unions’ representative

or representatives, the court stated: “It appears that

(national handling] would normally encompass central-

ized negotiations between two bargaining representatives,

each of which represents more than one carrier or union,

that result in a single agreement that applies to all of

the participants.” At times, however, “it appears that a

single carrier or union may bargain with the collective

representative of the other side.” Pet. App. 17a. Ac-

cordingly, the court said, “it is possible that Soo, even

if it chose to represent itself, may have been required to

participate in centralized negotiations with a coordinated

labor bargaining representative such as the CRLO, as

well as with the NCCC.” Td. at 18a.

The district court held that Soo was not required to

participate in the national negotiations. Pet. App. 20a-

2la. The court, analogizing the law governing with-

drawal from multi-employer bargaining units under the

National Labor Relations Act (NLRA), see Charles D.

Bonanno Linen Serv., Inc. v. NLRB, 454 U.S. 404, 410-

411 & n.5, 412 (1982), reasoned that Soo had withdrawn

prior to the commencement of negotiations and therefore

should not be required to participate in national bargain-

ing. The court further held that Soo was not required

to file a Section 6 notice of its intention to witharaw

from national bargaining, since the railroad’s resnonse

to the unions’ Section 6 notices gave the unions sufficient

notice of the railroad’s proposal. Pet. App. 21a.

The district court also rejected the unions’ arguments

based on Brotherhood of R.R. Trainmen v. Atlantic Coast

Line R.R., 383 F.2d 225, 229 (D.C. Cir. 1967), cert. de

nied, 389 U.S. 1047 (1968). In Atlantic Coast Line, the

Court of Appeals for the District of Columbia Circuit

said that the question whether national handling is “obli-

gatory will depend on an issue-by-issue evaluation of the

practical appropriateness of mass bargaining on that

point and of the historical experience in handling any

similar national movements.” 383 F.2d at 229. The dis-

trict court here observed that the parties in the Atlantic

Coast Line case were not required to participate in na-

tional handling, and concluded that subsequent cases

“have found national handling to be obligatory only after

the parties had commenced national bargaining and then

attempted to withdraw or take action inconsistent with

national handling.” Pet. App. 19a. The court also held

that, even if the Atlantic Coast Line standard were

applicable in this case, it is “far from clear that na-

tional handling is the most practically appropriate man-

ner in which to handle bargaining over health and wel-

fare benefits.” Pet. App. 2la-22a. The court pointed

out (id. at 22a) that not all carriers participate in the

national health and welfare plans, and that Soo had

succeeded in reaching individual agreements with 8 of

19 unions.’

4. The court of appeals affirmed. Pet. App. 1la-10a.

The court held that 45 U.S.C. 152 Third and Fourth

expressly afford both Soo and the unions the right to

select their own bargaining representatives. The court

of appeals, like the district court, drew on this Court’s

decision in the Bonanno Linen case to hold that a party

may withdraw from national bargaining under the RLA

so long as it does so before negotiations begin. Pet. App.

7a-8a. The court rejected the unions’ argument that,

because of the unique nature of railroad labor contracts,

the NLRA rule is not applicable in the RLA context.

Ibid. Although railroad agreements typically lack a

definite termination date, the court concluded that “(t]he

clear import of the RLA is that each proposal for modi-

fication under section 6 initiates a new, distinct set of

negotiations for which the parties are free to select new

bargaining agents.”” Jd. at 8a. “To conclude otherwise,”

the court reasoned, “would, in effect, perpetually bind

a carrier (or a union) to national representation once

it agrees to such representation for a particular bargain-

ing round. * * * [A]s a policy matter, this would have

the negative effect of discouraging parties from utilizing

the national bargaining tool in the first place.” Ibid.

The court of appeals also rejected the unions’ argu-

ment that the railroad was required to serve a Section

6 notice of its intent to withdraw from national bargain-

ing and to bargain over this “change” before bargaining

over the substance of a new plan. The court reasoned

that “the selection of a bargaining agent is not a sub-

ject of mandatory bargaining under the Act. Nor is it

a term in any existing agreement.” Pet. App. 8a. The

court of appeals observed that the unions, like the car-

riers, have the right to designate their bargaining repre-

sentative, and are free to select a representative to “bar-

7 The district court dismissed Soo’s counterclaim without prej-

udice. Pet. App. 22a, 26a-27a.

gain for terms that match or exceed those of the current

health and welfare plans.” Jd. at 9a. Finally, the court

stated that “the railroad * * * [has] a duty to bargain

with the representative or representatives * * * desig-

nated by the unions; it must bargain in good faith as

to the terms and conditions of health and welfare cover-

age of the various employees represented by the union

representatives.” Jd. at 10a.

DISCUSSION

Petitioners contend (Pet. 9-22) that Soo’s proposal to

withdraw from the national health and welfare plans

must be negotiated at the national bargaining table.

This is a relatively narrow contention as to which there -

is no conflict among the courts of appeals. Moreover,

we believe the court of appeals properly affirmed the

district court’s grant of summary judgment. Conse-

quently, this case does not warrant further review.

1. We note at the outset that the scope of the dispute

between petitioner unions and Soo has been narrowed

significantly by concessions made during the course of

the litigation. In their petition (Pet. 20-22), the unions

concede that Soo is not required to select the NCCC as

its bargaining representative. Petitioners recognize that

the railroad “unquestionably has the right to designate

its own representative for collective bargaining” (id. at

4; see also id. at 20), and that the railroad may choose

either to designate the NCCC as its representative or to

“e[o]me to the national bargaining table as its own rep-

resentative.” Jd. at 20. In addition, petitioners concede

that, so long as Soo “participated in the national bar-

gaining and bargained in good faith, it could refuse to

agree to every proposal for changes in the national plans

and could bargain to impasse on its own proposal for its

withdrawal from the national plans.” Jd. at 20-21.

Thus, the unions no longer argue, if they ever did, that

the RLA requires Soo to continue its participation in the

national health and welfare plans. Instead, the unions

recognize that Soo’s continued participation is a matter

for negotiation. For its part, Soo does not dispute that it

is required to negotiate over its proposal to withdraw

from the national health and welfare plans, and is obli-

gated to continue its participation in the national plans

until it reaches agreement or exhausts the procedures

enumerated in the RLA.® See Br. in Opp. 7.

2. As we understand its decision, the court of appeals

decided three distinct issues. First, it held that Soo need

not bargain with the unions over its decision not to

designate the NCCC as its bargaining representative.

Second, the court held that Soo’s proposal to withdraw

from the national health and welfare plans and substi-

tute its own self-insurance plan is a subject of manda-

tory bargaining under the RLA. Finally, the court of

appeals held that Soo need not negotiate at the national

bargaining table, but may engage in separate “local”

negotiations with the unions. The parties now agree on

the resolution of the first two issues; the third, in our

view, does not warrant the attention of this Court.

a. As to the first issue, the unions concede that Soo

is not required to bargain over its refusal to designate

the NCCC as its bargaining representative. This is

plainly correct. As this Court has observed, “[(f]reedom

of choice in the selection of representatives on each side

of the dispute is the essential foundation of the statutory

scheme.” Texas & N. O. R.R. v. Brotherhood of Ry. &

S.S. Clerks, 281 U.S. 548, 569 (1930). The plain lan-

guage of 45 U.S.C. 152 Third and Fourth grants both

carriers and unions the right to select their own bar-

gaining representatives. In addition, the designation of

a party’s bargaining representative generally is not the

subject of any express or implied agreement between the

carriers and the unions, and therefore is not subject to

8 There is also no dispute over the geographical location of the

bargaining. Soo has stated that it is willing to negotiate in Wash-

ington, D.C., where the national negotiations are conducted. Pet.

App. 10a n.11.

section 6 notice and bargaining.® Cf. Pittsburgh & L.E.

R.R. v. RLEA, 109 S. Ct. 2584, 2592-2593 (1989) (no

express or implied agreement that carrier would not sell

its assets). Accordingly, Soo was entitled to select its

own bargaining representative before the bargaining

commenced. The unions likewise were free to select their

own representatives. Presumably, the unions could desig-

nate the Health and Welfare Committee of the CRLO

(the unions’ representative in the national health and

welfare negotiations) as their sole representative in ne-

gotiations with Soo.'®

b. As to the second issue, Soo correctly recognizes that

it must adhere to the terms and conditions of the existing

national agreement on health and welfare until such time

as it either reaches a new agreement with the unions’

bargaining representatives or exhausts its mandatory

bargaining obligations under the RLA. Br. in @pp. 7.

And the unions concede that Soo is entitled to bargain to

impasse over its proposal to withdraw from the national

plans. Pet. 20-21. The parties thus agree that Soo’s

withdrawal proposal is a subject of mandatory bargain-

ing. It follows that the unions are incorrect in asserting

(id. at 12) that the decision of the court of appeals

permits carriers to “exit from national agreements

merely by refusing to participate in [national] negotia-

tions.” On the contrary, Soo must negotiate over whether

it may exit from the national plans. At this stage, Soo’s

proposal to withdraw is simply that—a proposal to the

unions. The unions are free to propose that Soo remain

® The court of appeals stated that selection of a bargaining agent

was not “a term in any existing agreement” betwen Sco and the

unions. Pet. App. 8a.

10 In some instances the NCCC, as national bargaining rep esenta-

tive for the railroads, has negotiated separately with individual

unions. See Pet. App. 17a. We see no objection to a national bar-

gaining agent for the unions bargaining separately with individual

railroads.

in the national plans, and to adhere to their position

within the limits of good-faith bargaining.”

c. The only remaining issue in dispute, we believe, is

whether the bargaining between Soo and the vnions will

take place at the national bargaining table or at a sep-

arate “local” bargaining table. To the extent that this is

an issue of substance as well as form, we agree with

the courts*below that separate bargaining is appropriate.

One consequence of the unions’ position in this case is

that Soo might be required to bargain with parties other

than the unions representing its own employees—for

example, unions that represent only employees of other

railroads participating in the national plans. But it is

far from clear that either the NCCC, as the bargaining

representative of carriers other than Soo, or unions that

do not represent Soo employees, have any statutory right

to participate in bargaining over Soo’s proposal to with-

draw from the national plans in favor of a self-insurance

plan. Petitioners do not suggest that such a right can

be found in the collective bargaining agreement. Nor is

such a right expressly conferred by any provision of the

RLA.” Moreover, the unions’ position, if adopted by the

courts, could have disturbing and far-reaching conse-

quences. For example, several railroads could prevent

11 We see no reason why other participants in the national health

and welfare plans would object if Soo and the unions were to agree,

in “local” negotiations, that Soo should continue as a participant in

the national plans. Petitioners themselves contend that adding addi-

tional carriers to the national health and welfare plans reduces the

cost of those plans to all participants. See Pet. 13-14.

12[t might be argued that such a right is implied by the statu-

tory duty to maintain collective bargaining agreements (45 U.S.C.

152 First). But to imply such a right would strain the text of the

statute, and would appear to be inconsistent with the statutory

requirement that “[a]ll disputes between a carrier or carriers and-

its or their employees shal] be considered * * * in conference be-

tween representatives designated * * *, respectively, by the carrier

or carriers and by the employees thereof interested in the dispute.”

45 U.S.C. 152 Second (emphasis supplied).

a competing railroad from concluding a separate agree-

ment on wages by refusing to permit the railroad to

withdraw from a nationwide wage agreement.

Petitioners do not explain how national bargaining

over Soo’s withdrawal proposal could be integrated with

bargaining over the unions’ proposed changes to the

national health and welfare pians. The two proposals

are quite different. At the very least, such integrated

national bargaining, with multiple bargaining repre

sentatives on each side and multiple proposals on the

table, would be cumbersome. In practice, it might well

turn out that Soo’s withdrawal proposal and the pro-

posed changes to the national plans would be negotiated

at separate bargaining sessions.

If Soo were required to participate in national bar-

gaining, its insistence on withdrawing from the national

plans could lead to an impasse at the national level even

if the NCCC, as representative of the other carriers,

agreed with the union representatives on changes to the

national plans. The risk of impasse would be multi-

plied if several carriers or unions declined to grant ne-

gotiating authority to national bargaining representa-

tives and instead came to the national bargaining table

with their own conflicting proposals. Such a bargain-

ing structure is unlikely to promote “the prompt and

orderly settlement of * * * disputes’ between carriers

and their unions. See 45 U.S.C. 15la. Consequently,

we believe the court of appeals reasonably concluded that

Soo is not required to participate in the national

bargaining.

We also agree with the courts below that Soo did

not violate the RLA by failing to provide a formal

Section 6 notice of its refusal to appoint the NCCC as its

bargaining representative and its intention to propose

its withdrawal from the national health and welfare

plans in separate negotiations. The unions initiated the

negotiation process by serving Soo with a Section 6

notice of proposed changes in the national plan. Soo

responded by notifying the unions of its decision not

to participate in the national negotiations and to nego-

tiate for a separate self-insurance plan. Soo’s notice

adequately informed the unions of “the purpose sought

to be attained” by Soo, and so satisfied the practical

requirements of Section 6. See Pullman Co. v. Order

of Ry. Conductors & Brakemen, 316 F.2d 556, 562 (7th

Cir.), cert. denied, 375 U.S. 820 (1963).

3. We recognize that the decision of the court of

appeals is in some tension with dicta in the opinion of

the District of Columbia Circuit in Brotherhood of R.R.

Trainmen v. Atlantic Coast Line R.R., supra. But we

do not believe there is a conflict. In the Atlantic Coast

Line case, the court of appeals declined to require na-

tional handling of a dispute over the size of the “crew

consist” of conductors and trainmen on railroad yard

and road crews. In the course of its opinion, the court

stated that “[w]hether [national handling] is * * *

obligatory will depend on an issue-by-issue evaluation

of the practical appropriateness of mass bargaining on

that point and of the historical experience in handling

any similar national movements.” 383 F.2d at 229. As

the courts below observed, neither Atlantic Coast Line

nor any other decision of a court of appeals has held that

national handling is obligatory where a party announces

its intention to bargain locally in advance.’* See Pet.

13In Chicago, B. & Q. R.R. v. Railway Employes’ Dep’t, 301

F. Supp. 603 (D.D.C. 1969), the district court held that a Section 6

notice requesting amendments to an existing national agreement on

“contracting out” should have been served on all parties to the

national agreement rather than on a single railroad. In that case,

however, the unions attempted to break up a multiemployer bar-

gaining unit by serving the Section 6 notice only on a single carrier.

There is an obvious difference between a party’s own choice not to

participate in a national bargaining unit and efforts to force another

party out of a bargaining unit. In addition, the unions in the

Chicago, B. & Q. case attempted to negotiate with a single carrier

over proposed amendments to a national agreement signed by 147

carriers. Jd. at 605. Again, there is a difference between proposing

to withdraw from a national agreement and proposing to amend

the national agreement.

App. 18a-20a (discussing cases). There is-thus no basis

for concluding that the District of Columbia Circuit

would have decided this case differently. Indeed, the dis-

trict court in this case expressly considered the “his-

torical experience” and “practical appropriateness” of

national handling of health and welfare issues in the

railroad industry, and concluded that national handling

was not mandatory even under the dicta of Atlantic

Coast Line.* See Pet. App. 21a-22a.

4. Finally, we agree with the courts below that the

rule of Bonanno Linen, supra, is an appropriate one in

the context of the RLA.* The process established by the

RLA for resolving major disputes is, above all, a process

for reaching voluntary agreements. See Brotherhood of

R.R. Trainmen v. Jacksonville Terminal Co., 394 U.S.

at 378. No provision of the RLA requires or even refers

to national handling, let alone requires national handling

on the basis of “practical appropriateness” or “historical

experience.” We therefore see no basis in the RLA for

requiring a carrier or union to submit to national bar-

gaining where, as here, the party announces in advance

of any bargaining that it chooses not to be included in

the national bargaining unit.

14 Even if national bargaining were required under Atlantic Coast

Line, petitioners concede that Soo is entitled to appoint its own

bargaining representative and bargain to impasse over its proposal

to withdraw from the national health plans. In our view, the narrow

question whether Soo is required to send its representative to the

national bargaining table—and thus bargain with parties to the

national agreement other than the representatives of its own em-

ployees—does not warrant the attention of this Court in the ab-

sence of a clear-cut conflict among the circuits.

15 Although the Court has cautioned against wholesale transfer

to the RLA of rules fashioned in the context of the NLRA, see

Brotherhood of .R. Trainmen v. Jacksonville Terminal Co., 394

U.S. at 383, it also has recognized that the NLRA may afford a

helpful analogy in RLA cases. See Trans World Airlines, Inc. v.

Independent Fed’n of Flight Attendants, 109 S. Ct. 1225, 1230

(1989).

We recognize that national bargaining under the RLA,

like multiemployer bargaining under the NLRA, may in

many instances play a role “in the effectuation of the

national policy of promoting labor peace.” 454 U.S. at

409 (quoting NLRB v. Truck Drivers Local Union No.

449, 353 U.S. 87, 95 (1957)). Thus, considerations sim-

ilar to those that gave rise to the NLRB rule approved

in Bonanno Linen may well justify requiring that once

a party has chosen to designate a representative and to

enter into national bargaining in connection with a par-

ticular Section 6 notice, the party cannot then revoke

that decision. For example, if a party to national han-

dling were permitted to withdraw simply because the

agreement turns out to be less favorable than expected,

the result would be to “undermine the utility of multi-

employer [or multi-union] bargaining.” 454 U.S. at 412

& n.8.

The unions argue that the rule of Bonanno Linen

should not be applied in the RLA context because

“'NLRA] agreements * * * expire’ while “RLA agree-

ments continue indefinitely.” '* Pet. 19 n.6. The unions’

distinction is not persuasive. The absence of an expira-

tion date in many collective bargaining agreements ne-

gotiated under the RLA does not imply that Congress

contemplated that those agreements would continue in-

definitely. On the contrary, the statute provides that

changes may be proposed by any party on only 30 days’

notice. 45 U.S.C. 156. In fact, railroads and their

unions routinely resort to moratorium clauses to pro-

vide an added measure of durability to agreements under

16 In fact, many agreements negotiated under the RLA, notably

in the airline industry, contain durational clauses. The interaction

of these clauses and the provisions of the RLA have been a matter

of dispute in the courts of appeals. See, e.g., Trans World Airlines,

Inc. v. Independen' Fed’n of Flight Attendants, 809 F.2d 483 (8th

Cir. 1987), aff’d by an equally divided Court, 485 U.S. 175 (1988) ;

EEOC v. United Air Lines, 755 F.2d 94 (7th Cir. 1985); IAM v.

Reeve Aleutian Airways, 469 F.2d 990 (9th Cir. 1972), cert. denied,

411 U.S. 982 (1973).

the RLA. We agree with the courts below that the

express statutory right of each party to select its own

bargaining representative, 45 U.S.C. 152 Third, comes

into play each time a party initiates a new round of

bargaining by serving a Section 6 notice on the other

parties to the agreement. If the choice to engage in

national bargaining were irrevocable and perpetual, na-

tional bargaining would soon cease to promote labor

peace.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

JULY 1990