Amicus Curiae Brief — Abx Air, Inc. v. Airline Professionals Association of the International Brotherhood of Teamsters, Local Union No. 1224, Afl-Cio

paid )

FEB ¢ 5 2002 No. 01-914

IN THE

Supreme Court of the United States

ABX AIR, INC.,

Petitioner,

v.

AIRLINE PROFESSIONALS ASSOCIATION OF THE

INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

LOCAL UNION NO. 1224, AFL-CIO,

Respondent.

On PETITION FOR A Writ OF CERTIORARI TO THE

UniTEep States Court OF APPEALS FOR THE SIXTH CIRCUIT

($$

MOTION FOR LEAVE TO FILE AND BRIEF AMICI CURIAE

OF THE AIR TRANSPORT ASSOCIATION OF AMERICA, INC.,

AIRLINE INDUSTRIAL RELATIONS CONFERENCE AND

NATIONAL RAILWAY LABOR CONFERENCE

IN SUPPORT OF PETITIONER

— SaaS

RosBert A. WARREN JOHN J. GALLAGHER*

Davip A. BERG NEAL D. MOoLLeN

AIR TRANSPORT ASSOCIATION MAarcareT H. Spurwin

OF AMERICA, INC. PauL, Hastincs, JANOFSKY

1301 Pennsylvania Ave., N.W. & WALKER LLP

Suite 1100 1299 Pennsylvania Ave., N.W.

Washington, D.C. 20004-1707 —‘ Tenth Floor

Washington, D.C. 20004-2400

Rosert J. DeLucta

AIRLINE INDUSTRIAL RELATIONS (202) S08-9500

CONFERENCE JOANNA L. MoorRHEAD

1300 19th Street, N.W. NATIONAL RaiLway LABor

Washington, D.C. 20036 CONFERENCE

1901 L Street, N.W.

Washington, D.C. 20036

Attorneys for Amici Curiae

* Counsel of Record

~

f *

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE |

IN SUPPORT OF PETITION FORA

WRIT OF CERTIORARI

Pursuant to Supreme Court Rule 37.2, the Air Transport

Association of America, Inc. (“ATA”), the Airline Industrial

Relations Conference (“AIRCON”), and the National

Railway Labor Conference (“NRLC”) move for leave to file

a brief as amici curiae in support of ABX Air, Inc.’s petition

for certiorari. A copy of the proposed brief is bound together

with this Motion. Amici file this Motion because respondent

Airline Professionals Association of the International

Brotherhood of Teamsters, Local Union No. 1224, AFL-CIO,

refused to consent to the filing of the brief. In support of this

Motion, amici state the following:

1. ATA is a membership organization comprised of

twenty-one U.S. certificated air carriers.' ATA represents its

members in a variety of legislative, judicial, and regulatory

matters and provides the industry perspective to government

agencies on a wide variety of issues affecting ATA’s members.

AIRCON is a membership association of twenty U.S.

certificated air carriers.» AIRCON was formed to facilitate

the exchange of ideas and information concerning personnel .

and labor relations issues in the airline industry, and to

1. ATA’s members are ABX Air/Airborne Express, Alaska Airlines,

Aloha Airlines, America West Airlines, American Airlines, American

Trans Air, Atlas Air, Continental Airlines, Delta Air Lines, DHL Airways,

Evergreen International, Federal Express, Hawaiian Airlines, JetBlue

Airways, Midwest Express Airlines, Northwest Airlines, Polar Air Cargo,

Southwest Airlines, United Airlines, United Parcel Service, and US

Airways. Associate members are Aerovias de Mexico, Air Canada, KLM-

Royal Dutch Airlines, and Mexicana de Aviacion.

2. AIRCON’s members overlap with those of ATA, except that

(1) Evergreen International and Polar Air are members of ATA but not

members of AIRCON; and (2) AirTran Airways is a member of AIRCON

but not of ATA.

represent the member carriers with respect to employment-

related legislative, judicial and administrative matters.

Together, ATA’s and AIRCON’s members account for more

than 97% of the domestic passenger and cargo traffic flown

annually by U.S. carriers and employ over half a million

people.

2. The members of the NRLC include all United States

Class I freight railroads and many smaller lines.* The NRLC,

through its National Carriers’ Conference Committee,

represents most of its members in multi-employer collective

bargaining with the thirteen major rail unions. It also advises

railroads on labor-related matters; administers industry-wide

health and welfare plans for rail employees; represents the

industry on rail labor issues before congressional committees,

other governmental bodies, and the courts; provides training

programs; and represents railroads in labor arbitration cases

before the National Railroad Adjustment Board and other

tribunals.

3. All three amici have filed numerous amicus briefs in

federal and state court proceedings concerning’a variety of

transportation-related issues. ATA and AIRCON have

previously submitted briefs in this Court in numerous cases

including US Airways, Inc. vy. Barnett, No. 00-1250 (2001);

Eastern Associated Coal Corp. v. United Mine Workers, Dist.

17, 531 U.S. 57 (2000); and Northwest Airlines, Inc. v. Air

Line Pilots Ass'n, 486 U.S. 1014 (1988), and ATA has also

done so in Sutton v. United Air Lines, Inc., 527 U.S. 471

(1999) and in Norris. NRLC has filed briefs as amicus curiae

in numerous cases including Brown v. Pro Football, 518 U.S.

3. The Class I freight railroads include Burlington Northern and

Santa Fe Railway Company, Soo Line Corporation, Illinois Central

Railroad Co., Grand Trunk Western Railroad, CSX Transportation,

Inc., Kansas City Southern Railway Co., Norfolk Southern Railway

Company, and Union Pacific Railroad Co.

231 (1996); Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246

(1994); and Conrail v. RLEA, 491 U.S. 299 (1989).

4. Because of the unique role the rail and airline

industries serve in the American economy, Congress devised

a labor relations process solely for these industries, the

Railway Labor Act. The decision of the Sixth Circuit in this

case effectively repudiates the dispute resolution mechanism

embodied in that legislation, a system designed to prevent

labor disputes from interrupting interstate commerce or

carrier operations. The decision does so by authorizing unions

in the airline and rail industries to use job actions as a means

for resolving so-called “minor disputes,” i.e., disagreements

over the meaning and application of collective bargaining

agreements. This holding cannot be reconciled with the

relevant decisions of this Court or the uniform decisions of

the other circuits and it has potentially disastrous implications

for the stability of labor relations in the airline and railroad

industries. By giving unions the option to reject arbitration

in favor of collective action, the opinion threatens to

undermine the very purpose for which the Railway Labor

Act was enacted. Amici are uniquely situated to explain the

destabilizing impact the decision below portends. For this

reason, amici seek leave to file the accompanying brief and

urge the Court to grant review.

Rosert A. WARREN

Davo A. Berc

AIR TRANSPORT ASSOCIATION

OF AMERICA, INC.

1301 Pennsylvania Ave., N.W.

Suite 1100

Washington, D.C. 20004-1707

1300 19th Street, N.W.

Washington, D.C. 20036

Marcaret H. Spurn

PauL, Hastines, JANOFSKY

& WALKER LLP

1299 Pennsylvania Ave., N.W.

Tenth Floor :

Washington, D.C. 20004-2400

(202) 508-9500

JOANNA L. MoorHEap

NATIONAL RaILway LABOR

CONFERENCE

1901 L Street, N. W.

Washington, D.C. 20036

Attorneys for Amici Curiae

* Counsel of Record

TABLE OF CONTENTS

Table of Cited Authorities .....................

Re os kena Sie

Ee wis wi FG boe So oe Eh

Statement

CRP Ceseeeor eee esse eo ecewvwvteos+ eee 6 & de

Summary of Argument .......................

Reasons for Granting the Writ .................

I.

The Decision Below Directly and

Unambiguously Conflicts With The Relevant

Decisions Of This Court ................

A.

The Railway Labor Act Was Designed

As A Substitute For Economic Warfare,

But The Decision Below Encourages

Union Job Actions In Preference To The

BTCC 3c see.

Union Self-Help Taken To Short-Circuit

Or Circumvent The RLA’s Minor

Dispute Resolution Processes Must Be

NS O8lrs 6 PR Ba i ov voce ince ccden

The Court Of Appeals Ignored These

Fundamental Principles .................

A. The Prohibition On Self-Help Applies To

Major And Minor Disputes ..........

il

Contents

Page

B. The Form Of Self-Help Chosen By The

Union Is Irrelevant; Any Effort To Avoid

The Act’s Mandatory Procedures Is

PINE Gea os ab Skin ried wide o cee ce 14

Il. This Case Is Appropriate For Summary

MET Nee eax ck ediic cles ce 19

I ote a es os 1 PEON ATA ar ees 20

iii

TABLE OF CITED AUTHORITIES

Page

Cases:

ALPA v. Alaska Airlines, 898 F.2d 1393 (9th Cir.

SOE BECCA CEU REVET CCST N CUS Sebo ceckoteus 11

ALPA v. Northwest Airlines, Inc., 627 F.2d 272

Ces Se EE ho Urb edie b¥ cw bees ded eses 10

American Airlines, Inc. v. TWU, 84 LRRM (BNA)

2114(N.D. Tex. 1972), aff'd mem., 474 F.2d 1344

Ce a POE i in B40: 4's'vid'o'e Wa oo do's oo bee kee 8 15

Andrews v. Louisville & N. R.R., 406 U.S. 320

VEE Subd Wl a WES De Weer bebe ekebiocendhs i]

Atchison, T. & §. F. R. Co. v. Buell, 480 U.S. 557

PTE cikbe dha th bus bens oe Veen sackedes » 8

Atchison, T. & S. F. R. Co. v. UTU, 734 F.2d 317

I ns wisn we 13

Brotherhood of Locomotive Eng’rs v. Louisville &

N. R.R., 373 U.S. 33 (1963) ... 1, 5, 6, 8, 9, 12, 14, 15

Brotherhood of R.R. Trainmen v. Chicago River

& @.&, Go., 353 US. SO CISS7) 2. cc ccceces 11, 12, 15

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

Cig Be Ses SGU cc vcccciccecevcevaes 8

Brotherhood of Ry. Carmen v. Atchison, T. & S. F. R.

Co., 894 F.2d 1463 (Sth Cir. 1990) ........... 10

iv

Cited Authorities

Page

Brotherhood of Ry. Clerks v. Atchison, T. & S. F. R.

Co., 847 F.2d 403 (7th Cir. 1988) ............ 10

Chicago & N. W. Transp. Co. v. RLEA, 855 F.2d 1277

NI ME So fek oe ete e 1]

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

SOA bank Gb ceed duns nncd ovcedeccks 11

Chicago & N.W. Transp. Co. v. RLEA, 908 F.2d 144

GU SO RE 60 8 oh dobbs bens iktBieess, 13

Clark County Sch. Dist. v. Breeden, 532 U.S. 268

GONE Sabai haces es se ce cs 19

COMAIR, Inc. v. ALPA, No. 99-250 (E.D. Ky. Dec.

IE GR SO AMS ee Oe mT 15

Conrail v. RLEA, 491 U.S. 299 (1989) .......... 8

D.C. Circuit: ALPA v. Eastern Air Lines, Inc.,

863 F.2d 891 (D.C. Cir. 1988) .........:..... 9

Delta Air Lines, Inc. v. ALPA, 238 F.3d 1300

(11th Cir.), cert. denied, 532 U.S. 1019 (2001)

gitwili wdeedeusine seated 15, 16, 17, 18

Detroit & Toledo S.L. R. Co. v. UTU, 396 U.S. 142

QUOD sc encuvdedskh ic ctiesns are. 8

Eighth Circuit: Sheet Metal Workers’ Int’l Ass’n v.

Burlington N. R. Co., 893 F.2d 199 (8th Cir.

ROMO ve 00s ituvedssakd teehee 11

v

Cited Authorities

Page

Elgin, J. & E. Ry v. Burley, 325 U.S. 724(1947) .. 14

Ertle v. Continental Airlines, 136 F.3d 690 (10th Cir.

SOE Ti hahha ocak eked WbinnewG/s ha ie be ain 1]

Fifth Circuit: APA v. American Airlines, Inc., 898 F.2d

Se SU he Pisce Ga lvnsdeievecdacs 10

First Circuit: National R.R. Passenger Corp. v. IAM,

be aw FT fe Be 10

Fourth Circuit: UTU v. S. Carolina Pub. Ry. Comm'n,

130 F.36 627 (4th Cir. 1997)... 0. cccccccces 10

Gunther v. San Diego & A. E. Ry., 382 U.S. 257

EE A ee Tee Se ee eee 6,8

Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246

NG eas to sink Wed hee bares be wbb be ous 8,9

Illinois Cent. R.R. v. BRT, 398 F.2d 973 (7th Cir.

SE itaa-cak bak 2b sR odo er o'ne awed w beers 13

Independent Union of Flight Attendants v. Pan

American World Airways, Inc., 789 F.2d 139

RE cae eee Samy Seem 10

Itasca Lodge 2029 v. Railway Express Agency, Inc.,

oon Fate G5r Cle Coe, 19GB) oi vs dic vii dcccccs> 15

Long Island R.R. v. IAM, 874 F.2d 901

(2d Cir. 1989), cert. denied, 493 U.S. 1042

SN ed ik wie eb dine Tees ede do eixne 13

vi

Cited Authorities

Long Island R.R. v. System Fed’n No. 156,

289 F. Supp. 119 (E.D.N.Y. 1968) ............

Long Island R.R. v. System Fed’n No. 156, 368 F.2d

eG SUED das ebteeckidcdaveedenserrs

Maine Cent. R.R. v. UTU, 787 F.2d 780 (lst Cir.

SED. ce vith kas dddan Cad eekide done ka heer

Major League Baseball Players Ass'n v. Garvey,

SOE ee DOE ke cbdudcbsuitecesccekar

Metro-North Commuter R.R. v. Local 808, Teamsters,

1988 U.S. Dist. LEXIS 10648 (S.D.N.Y. 1988)

OG 6 Se.

Monroe v. Missouri Pac. R. Co., 115 F.3d 514

CFE PGS Ue bse ckcs 206s nadebeteeeae

Morales v. S. Pac. Transp. Co., 894 F.2d 743

Ge PE Wikis 6 oo sdk O en 0c-vide oh abe Cuber.

Ninth Circuit: Hubbard v. United Air Lines, 927 F.2d

Se ey ND a8 bo ade wd bebe ea oh een

Ohio v. Reiner, 532 U.S. 17 (2001) .............

Order of R. Conductors & Brakemen v. Spokane,

P&S. R. Co., 366 F.2d 99 (9th Cir. 1966) .....

Page

Vii

Cited Authorities

Page

Piedmont Aviation, Inc. v. ALPA, 416 F.2d 633

EE in a Satake yn ck hame ees ieee 13

RLEA v. Consolidated R. Corp., 845 F.2d 1187

i SE ns de wee ha.es-0s.6dbideknscevis 10

RLEA v. Hotel Employees & Rest. Employees Int'l

Union, 915 F.2d 116 (4th Cir. 1990) .......... 10

Schweiker v. Hansen, 450 U.S. 785 (1981) ....... 7,19

Second Circuit: BLE v. Long Island R.R., 85 F.3d 35

ed 6 MLS oe ed ne ced bo 6 10

Seventh Circuit: Division No. 1, BLE v. Consolidated

Rail Corp., 844 F.2d 1218 (6th Cir. 1988) ..... 10

Sixth Circuit: Teamsters v. ABX Air, Inc., 2001 U.S.

App. LEXIS 26911 (6th Cir. Dec. 13,2001).... 10

Southeastern Pa. Transp. Auth. v. Brotherhood of

R. Signalmen, 882 F.2d 778 (3d Cir. 1989) ..... 13

Southern Pac. Transp. Co. v. UTU, 491 F.2d 830

A EE Senn a nd4eee eos naddsabes Genoa 13

Switchmen s Union v. NMB, 320 U.S. 297 (1943) ... 8

Switchmen's Union v. Southern Pac. Co., 398 F.2d

I re ls een 13

Tenth Circuit: BMWE v. Union Pac. R.R., 2000 U.S.

App. LEXIS 33454 (10th Cir. Dec. 21, 2000)

eevee eeveeeeeeeeeeeeeeeeeeeneeeeeeeeeeeeeee

Vili

Cited Authorities

Page

Texas Int'l Airlines, Inc. v. ALPA, 518 F. Supp. 203

ENB aCe Nero ae ee 2 15

Third Circuit: IACP v. Continental Airlines, 155 F.3d

PI IS a Res oe 10

Trans Int'l Airlines, Inc. v. Teamsters, 650 F.2d 949

Je ee be ess eee 13

United Air Lines, Inc. v. IAM & AW, 243 F.3d 349

(7th Cir.), cert. denied, 122 S. Ct. 202 (2001)

00 0b 4 eee OO kee Ob MENS aie be dos b Sodus ERO. 15, 17

Zimmerman v. Atchison, T. & S. F. R. Co., 888 F.2d

COP CUR ae SU oi AR RIL ll

Statutes:

TD LED ee sc ASA a PR SR 18

GF Ure See ea A hk RS Si ers 8

OP aa Oe OM ook ibis ic RES 8

GS Vane UID ov vceckvdoucdcdcgcktitesde. 8

OS WGA OOO 5 bak ec hs 6

USE. OI Bi CRRA A Ee 9

BUGLE Wii 6 Reticca sé Ses 9

ix

Cited Authorities

Other Authorities:

Douglas L. Leslie, The Railway Labor Act 249

(American Bar Association, BNA 1995) .......

The International Association of Machinists’ primer,

ef OE ea ae

Page

l

INTERESTS OF AMICI‘

Amici and their interests in this case are identified in the

accompanying Motion for Leave to File Brief Amici Curiae,

and in the Introduction that follows. Accordingly, and in the

interests of brevity, those matters are not repeated here.

INTRODUCTION

The court below held that an airline or railroad union

contesting the meaning of its labor agreement can lawfully

institute a job action to force the carrier to accede to the union’s

view of the contract. It may do so, the court held, rather than

submit the disagreement to the Railway Labor Act’s (“RLA” or

the “Act”) minor dispute “grievance procedures [created by

Congress] to be a compulsory substitute for economic self-help,

not merely a voluntary alternative to it.” Brotherhood of

Locomotive Eng’rs v. Louisville & N. R.R., 373 U.S. 33, 39

(1963). As explained below, this holding is wrong as a matter

of statutory interpretation and is irreconcilable with a long and

uniform line of authority from this Court and the other courts

of appeals.

This holding, however, is not simply an erroneous

construction at the margins of the statute. Rather, this decision

repudiates the RLA’s comprehensive, mandatory, and exclusive

dispute resolution processes and represents a genuine threat to

the stability of airlines and railroads, industries Congress deemed

to be vital to the economic life of this nation. The processes of

the Act were designed as an orderly substitute for economic

warfare; the decision below is an open invitation to this kind of

upheaval. The Act makes arbitration the sole means for resolving

contract interpretation disputes; the court of appeals’ decision

promises labor an alternative means for achieving its desired

results. And because the self-help alternative created by the court

below is available to labor regardless of the strength of the

union’s position on the merits of the underlying contractual

4. No counsel for either party authored this brief, either in whole

or in part. No entity other than the amici and their members made any

monetary contribution to the preparation or submission of this brief.

2

interpretation dispute, the job action alternative becomes even

more valuable to the union when its contractual position is most

frivolous.

The decision in this case stands as a negation of legislative

intent and the decisions of this Court, and a threat to stability in

a vital sector of the economy. In an area of law, and in industries,

where uniform national regulation is essential, the court of

appeals’ contrarian view is intolerable. Certiorari should be

granted and the decision below reversed.

STATEMENT

1. ABX, Inc., is an air express cargo carrier doing business

as Airborne Express. Its pilots are represented for collective

bargaining purposes by the Airline Professional Association

of the International Brotherhood of Teamsters, Local 1224

(the “Union” or the “Teamsters”’).

2. The dispute at issue in this case involves a provision in

the parties’ collective bargaining agreement that guaranteed

Teamster members three consecutive days off under certain

circumstances. A number of grievances were filed by Teamsters

members over the application of that provision.

3. The Teamsters decided, however, not to take chances

with the arbitration process. Instead of leaving the dispute to an

arbitrator, the Union decided to announce an overtime embargo

against ABX in an attempt to force the airline to concede on the

merits of the grievances before they could be arbitrated.

4. Thus, in August of 1997, the Teamsters instructed its

members to refrain from bidding on overtime (called “open lines

of time” or “open flying”). The campaign was a resounding

success. None of ABX’s pilots bid for open time in September,

and of 617 available open lines of time in October, bids were

submitted for only 13. Pilots submitting bids for open time were

harassed with Teamster knowledge and acquiescence.

5. This campaign had a significant impact on ABX’s

operation. Like virtually every commercial airline (whether

passenger or cargo carriers), ABX’s regular pilot work schedules

are constructed with a mix of fixed work assignments

3

(also known as “lines of time”) and a certain amount of open

time, which is not pre-assigned to a particular pilot or which

becomes “open” because the assigned pilot becomes unavailable

(e.g., due to illness, vacations or training). The amount of open

time built into a schedule is based on the knowledge gained

through years of experience that a predictable number of pilots

will bid for the open time to increase their incomes. This practice

gives the airline flexibility to place resources where they are

needed. When the Teamsters instructed its members to refrain

from bidding on open time — and punished those who dared to

ignore the directive — it forced ABX to pay extraordinary

premiums to junior pilots who were then mandatorily assigned

to these “open” operations. The premiums paid for these “junior

manning” assignments amounted to hundreds of thousands of

dollars. Moreover, because the Teamsters had succeeded in its

goal of rendering ABX’s manpower situation wholly

unpredictable, ABX was forced to withdraw from seeking

business accounting for $3 million in profits that historically

ABX had acquired over the holiday season.‘

6.a. ABX sought a preliminary injuncticn against the

Teamster’s concerted job action in the United States District

Court for the Southern District of Ohio. District Judge Sandra

Beckwith found that the Teamsters had conceived, instigated,

and enforced the overtime embargo, and that to that date, the

embargo had cost ABX roughly $200,000 in increased labor

costs. Judge Beckwith decided, however, that she had

jurisdiction to enjoin self-help under the RLA only if it took the

form ofa strike (or the functional equivalent of a strike). Because

ABX had managed to staff all of its flights without delays or

cancellations despite the job action, Judge Beckwith concluded

she had no authority to enter an injunction.

5. Because there are contractual and regulatory limits on the amount

of flying any individual can perform in a given period, the “junior

manning” solution to an overtime embargo may only partially remediate

an overtime embargo.

b. After a trial on the merits, however, the district court

enjoined the embargo. The court found that: (1) the overtime

embargo was “conceived . . . and promoted” by the Teamsters’

Executive Board (Pet. App. 21a); (2) the Teamsters intended to

continue the embargo “for as long as [ABX] refused to adopt

the interpretation of the collective bargaining agreement urged”

by the Teamsters (id.); and (3) as the Teamsters had intended,

the embargo had cost ABX hundreds of thousands of dollars in

direct labor costs and had forced it to withdraw from $3,000,000

in additional profits for business ABX had traditionally done.

Id. at 22a. The court concluded that a “concerted refusal to work

overtime . .. violates the union’s duty, under § 2 First of the

RLA, to ‘settle all disputes . . . in order to avoid any interruption

to commerce.”” Jd.

7. Apanel of the Sixth Circuit affirmed all of the district

court’s factual findings — the presence of a job action, the

Union’s complicity, the direct and consequential financial

damage purposefully done to ABX — but nonetheless reversed.

The court of appeals acknowledged that an overtime embargo

could be unlawful if used by a union to achieve its goals in a

major (i.e., a bargaining) dispute, but held that the same conduct

is entirely lawful if the underlying controversy is a minor

(or arbitrable grievance) dispute. The court also concluded that

as a matter of law, a union job action cannot be enjoined if its

“only” impact is to bleed the airline’s financial resources. Pet.

App. 13a. Because ABX was able to staff its operations by using

mandatory overtime, no flights were delayed and none was

canceled; therefore, the court held, there was no “concerted

interruption of operations.” Jd. Acknowledging ABX’s “higher

operational costs” and “losses from foregone contract

opportunities [from] seasonal contracts,” the court concluded

that ABX’s “regular business base was not impaired,” and

therefore the embargo was not a “strike” that could be enjoined.

Pet. App. 13a (emphasis added). Resting its decision on these

distinctions — i.e., between ABX’s regular and its seasonal

business, between economic harm and flight cancellations, and

5

between major and minor disputes — the court held there was

nothing wrong with the union’s tactics, and ABX was entitled

to neither an injunction nor damages.

SUMMARY OF ARGUMENT

This case possesses every one of the hallmarks of a case

worthy of review. First, the case poses a question of exceptional

importance to two industries of vital concern to the nation.

The decision below encourages unions in the rail and airline

industries to take their labor disputes to the streets, rather than

to arbitration, undermining the statutory system of arbitration

uniformly held — until now — to be exclusive and mandatory,

a system that has served the rail and airline industries well for

more than 65 years. A union vontemplating arbitration of a

contractual grievance must consider the merits of its position

and its chances of success; a union considering the collective

action licensed by the court of appeals is not so constrained.

Because the union can apply the collective muscle of its

members without regard to the strength of its contractual

position, the job action alternative to arbitration sanctioned by

the court of appeals is most welcome to a union when its

contractual position is most frivolous. The decision thus invites

more disputes and more job actions.

Second, the decision below turns its back on a long line of

authority from this Court and creates an intolerable division of

authority among the courts of appeals. This Court has held time

and again that the statutory grievance and arbitration procedures

adopted by Congress in 1934 form a “compulsory substitute

for economic self-help, not merely a voluntary alternative to

it.” Brotherhood of Locomotive Eng’rs v. Louisville & N. R.R.,

373 U.S. 33, 38 (1963) (describing “mandatory, exclusive

and comprehensive system” for resolving minor disputes).

The decision below, however, licenses — even encourages —

labor to resolve contract disputes through collective action rather

than through arbitration.

Third, and quite apart from its infidelity to the decisions of

this Court and those of the other circuits, the decision below

was plainly misguided — as a matter of statutory construction

and as a matter of federal labor policy. The court of appeals

concluded that a union has two alternatives when faced with a

dispute over the interpretation of its collective bargaining

agreement: (a) submit the dispute to final and binding arbitration

before a system board of adjustment, “a mandatory, exclusive

and comprehensive system for resolving grievance disputes”;

or (b) attempt to punish the airline through a concerted job action

until the airline is compelled to surrender to the union’s view.

The court offered two justifications for this conclusion.

The court first held that in a contract interpretation

(or “minor’’) dispute like this one, “there is no requirement [that

a union] maintain the status quo, thus making certain types of

concerted action available that would not be during a major

[or contract formation] dispute.” Pet. App. 12a. In reaching

this conclusion, the court ignored Section 2 First of the Act,

45 U.S.C. § 152 First, which explicitly directs employers and

employees “to exert every reasonable effort to make and

maintain agreements concerning rates of pay, rules, and working

conditions, and to settle a// disputes, whether arising out of the

application of such agreements or otherwise, in order to avoid

any interruption to commerce or to the operation of any

carrier. .. .” (emphasis added).

The court also concluded that because the particular

economic weapon chosen by the Union in this case —

a concerted refusal to fly overtime — did not result in canceled

or delayed flights, it did not constitute a “concerted interruption

of operations” and thus could not be enjoined. Pet. App. 13a.

The court found, as a matter of law, that ABX’s operations were

not interrupted even though, as the court acknowledged, ABX

was forced by the union’s conduct to pay hundreds of thousands

of dollars in contractual premiums to staff its flights and to

withdraw from a potential $3 million in profits for operations

that it predicted it could not staff because of the manpower

6. Gunther v. San Diego & A. E. Ry., 382 U.S. 257, 264 (1965);

Louisville, 373 U.S. at 38.

shortage the union had instigated. This conclusion was mistaken.

An airline’s operations include not only the flights it is scheduled

to make on any given day, but also its operating costs and its

marketing operations aimed at securing flights for tomorrow.

The Teamsters knew this; its avowed purpose in the war it

declared on ABX was to inflict economic injury sufficient to

bring the airline to its knees. The RLA cannot be construed as

encouraging this sort of pressure tactic.

The union did not want an arbitrator to decide the meaning

of its collective bargaining agreement, and instead tried to force

carrier capitulation by inflicting economic damage, to use

collective action to compel the airline to concede on the contract

dispute. That cannot be reconciled with the Act, with the policies

that are its foundation, or with the decisions of this Court that

effectuate it.

Indeed, the law applicable to this case “is settled and stable,

the facts are not in dispute, and the decision below is [so] clearly

in error” that summary disposition would be warranted.

Schweiker v. Hansen, 450 U.S. 785, 791 (1981) (Marshall, J.,

dissenting). Amici urge the Court to grant review in this case

and reverse the decision below.

REASONS FOR GRANTING THE WRIT

I. The Decision Below Directly and Unambiguously

Conflicts With The Relevant Decisions Of This Court

A. The Railway Labor Act Was Designed As A

Substitute For Economic Warfare, But The Decision

Below Encourages Union Job Actions In Preference

To The Act’s Procedures

The purposes of the RLA are neither obscure nor difficult

to articulate:

To avoid any interruption to commerce or to the

operation of any carrier engaged therein; ... to

provide for the prompt and orderly settlement of all

disputes concerning rates of pay, rules, or working

conditions; . . . [and] to provide for the prompt and

orderly settlement of all disputes growing out of

grievances or out of the interpretation or application

of agreements covering rates of pay, rules, or

working conditions.

45 U.S.C. §§ 151a(1), (4), and (5).

To achieve these ends, Congress devised a seamless,

exclusive, and comprehensive system for the orderly

resolution of labor-management disputes. Hawaiian Airlines,

Inc. v. Norris, 512 U.S. 246, 252 (1994); Atchison, T. & S. F.

R. Co. v. Buell, 480 U.S. 557, 562, 566 (1987) (“The RLA

.. . provides a comprehensive framework for the resolution

of labor disputes”). Bargaining, or “major,” disputes — i.e.,

those over the acquisition of new contractual rights — are

resolved through bilateral negotiations, mediation under the

auspices of the National Mediation Board (“NMB”), and, if

necessary, the intercession of a Presidential Emergency Board

and Congress. It is only when matters remain unresolved at

the end of this “purposely long and drawn out” process that

self-help is permitted. Detroit & Toledo S.L. R. Co. v. UTU,

396 U.S. 142, 149 (1969) (quoting Brotherhood of Ry. &

S.S. Clerks v. Florida E. C.R. Co., 384 U.S. 238, 246 (1966)).

Representation disputes — controversies over whether

employees will be represented for bargaining purposes, and

if so, by whom — are committed to the all-but-unreviewable

discretion of the NMB. Switchmen’s Union v. NMB, 320 U.S.

297 (1943).

And as this Court has held time and time again, Congress

decided that arbitration should be the “mandatory, exclusive

and comprehensive [process] for resolving grievance

disputes.” Gunther v. San Diego & A. E. Ry., 382 U.S. 257,

264 (1965) (quoting Louisville, 373 U.S. at 40); see also

Norris, 512 U.S. at 252 (noting “mandatory arbitral

mechanism for ‘the prompt and orderly settlement”” of minor

disputes); Conrail v. RLEA, 491 U.S. 299, 303 (1989)

(arbitration boards have “exclusive jurisdiction over minor

disputes”); Brotherhood of Locomotive Engineers v.

9

Louisville & N. R.R., 373 U.S. 33, 38 (1963) (describing

“mandatory, exclusive and comprehensive system” for

resolving minor disputes).’ As the Court explained in

Andrews v. Louisville & N. R.R., 406 U.S. 320, 322 (1972):

“Provision for arbitration of a... minor dispute is not

a matter of voluntary agreement under the Railway

Labor Act; the Act compels the parties to arbitrate minor

disputes before [arbitration boards] established under

the Act.” Thus, the notion that the grievance and

arbitration procedures provided for minor disputes in

the Railway Labor Act are optional, to be availed of as

the employee or the carrier chooses, was never good

history and is no longer good law.

Id. at 322 (citation omitted).

The decision below cannot be reconciled with these cases.

It holds explicitly that the Act’s arbitral procedures are not

mandatory, not exclusive, and not comprehensive. It holds that

the Act’s minor dispute resolution processes do not constitute a

“compulsory substitute for economic self-help,” but rather are

merely “a voluntary alternative to it.” It endorses the disorder

of collective action rather than the orderly, statutorily prescribed

process of arbitration. The court of appeals did not merely ignore

the relevant decisions of this Court; * it rejected in toto Congress’

7. The arbitration process used in the airline industry is somewhat

different from that used by the railroads. In the latter industry, arbitration

may occur before national boards of adjustment created by the Acct itself,

or before Special Boards of Adjustment or Public Law Boards created

by the parties. 45 U.S.C. § 153. In contrast, there is no national board

for airlines and the Act compels airlines and unions to form company-

specific “system boards of adjustment.” 45 U.S.C. § 184. In all these

arbitration mechanisms, the adjustment boards have mandatory and

exclusive jurisdiction over minor disputes. Norris, 512 U.S. at 252.

8. The courts of appeals have been faithful to these decisions, and

therefore the decision below creates a conflict with, at least, the following

decisions. D.C. Circuit: ALPA v. Eastern Air Lines, Inc., 863 F.2d 891,

895-96 (D.C. Cir. 1988) (“the arbitration board’s jurisdiction over minor

(Cont'd)

10

rationale for fashioning the RLA’s arbitration processes.

For that reason alone, review should be granted.

(Cont'd)

disputes is exclusive; .. . A union cannot make a minor dispute the subject

of a strike”); ALPA v. Northwest Airlines, Inc., 627 F.2d 272, 275 (D.C.

Cir. 1980); First Circuit: National R.R. Passenger Corp. v. IAM, 915

F.2d 43, 47 (1st Cir. 1990) (“parties’ dispute over the discipline of the

Union representatives constitutes a ‘minor dispute’ under the RLA, . ..

and as such is within the exclusive jurisdiction of the Adjustment

Boards”); Maine Cent. R.R. v. UTU, 787 F.2d 780 (ist Cir. 1986); Second

Circuit: BLE v. Long Island R.R., 85 F.3d 35 (2d Cir. 1996); Independent

Union of Flight Attendants v. Pan American World Airways, Inc., 789

F.2d 139, 141 (2d Cir. 1986) (adjustment boards “have exclusive

jurisdiction over ‘minor disputes’”); Third Circuit: IACP v. Continental

Airlines, 155 F.3d 685, 691 (3d Cir. 1998) (“Minor disputes are subject

to mandatory arbitration by the relevant board of adjustment, and may

not be the subject matter of strikes. . . .”); RLEA v. Consolidated R. Corp.,

845 F.2d 1187 (3d Cir. 1988); Fourth Circuit: UTU v. S. Carolina Pub.

Ry. Comm ‘n, 130 F.3d 627 (4th Cir. 1997); RLEA v. Hotel Employees &

Rest. Employees Int'l Union, 915 F.2d 116 (4th Cir. 1990); Fifth Circuit:

APA v. American Airlines, Inc., 898 F.2d 462 (Sth Cir. 1990); Brotherhood

of Ry. Carmen v. Atchison, T. & S. F. R. Co., 894 F.2d 1463 (Sth Cir.

1990); Morales v. S. Pac. Transp. Co., 894 F.2d 743, 745 (Sth Cir. 1990)

(“The Railway Labor Act provides a comprehensive scheme of

mandatory procedures for the prompt and orderly settlement of ‘major

disputes’ and ‘minor disputes’ between carriers, unions, and

employees.”); Sixth Circuit: Teamsters v. ABX Air, Inc., 2001 U.S. App.

LEXIS 26911, at *5 (6th Cir. Dec. 13, 2001) (dispute over cockpit voice

recorder was “‘minor dispute’ under the RLA, over which an appointed

adjustment board exercises exclusive jurisdiction”); Seventh Circuit:

Division No. 1, BLE v. Consolidated Rail Corp., 844 F.2d 1218 (6th Cir.

1988); Monroe v. Missouri Pac. R. Co., 115 F.3d 514, 516 (7th Cir.

1997) (All minor disputes “must be adjudicated under RLA mechanisms,

which include an employer’s internal dispute-resolution procedures and

an adjustment board established by the unions and the employer”);

Brotherhood of Ry. Clerks v. Atchison, T. & S. F. R. Co., 847 F.2d 403,

406 (7th Cir. 1988) (RLA required the union and the employer to bring

their minor dispute before the Adjustment Board, “the present dispute

is a minor dispute within the exclusive jurisdiction of the NRAB”);

(Cont'd)

11

B. Union Self-Help Taken To Short-Circuit Or

Circumvent The RLA’s Minor Dispute Resolution

Processes Must Be Enjoined

Because each of the Act’s dispute resolution mechanisms

is mandatory and, within its sphere, exclusive, any self-help

taken by the parties to circumvent those mechanisms is unlawful

and should be enjoined. More specifically, when a union tries

to force a solution to an RLA dispute by instituting a job action

rather than submitting the dispute to the appropriate statutory

process, it acts illegally and must be enjoined. See, e.g., Chicago

& N.W. R. Co. v. UTU, 402 U.S. 570 (1971) (in major dispute, a

union’s resort to self help prior to exhaustion of the Act’s

bargaining procedures is unlawful and should be enjoined);

Brotherhood of R.R. Trainmen v. Chicago River & I. R. Co.,

353 U.S. 30 (1957) (affirming injunction against union self-

help over minor dispute).

The Court has affirmed injunctions in two minor dispute

cases materially indistinguishable from this one. In Chicago

River, the union struck over 21 outstanding grievances rather

(Cont'd)

Chicago & N. W. Transp. Co. v. RLEA, 855 F.2d 1277 (7th Cir. 1988);

Eighth Circuit: Sheet Metal Workers’ Int'l Ass'n v. Burlington N. R. Co.,

893 F.2d 199, 202 (8th Cir. 1990) (“purpose of the RLA is to prevent

the disruption of the Nation’s rail service by requiring unions and

management to attempt to settle all contractual disputes and minor

grievances using the procedures provided in the RLA”); Ninth Circuit:

Hubbard v. United Air Lines, 927 F.2d 1094, 1096 (9th Cir. 1991)

(“adjustment board created under the RLA has exclusive jurisdiction

over minor disputes”); ALPA v. Alaska Airlines, 898 F.2d 1393 (9th Cir.

1990); Tenth Circuit: BMWE v. Union Pac. R.R., 2000 U.S. App. LEXIS

33454, at *6 (10th Cir. Dec. 21, 2000) (“RLA provides a mandatory

arbitration system for settling two classes of labor disputes: ‘major

disputes’ which ‘seek to create contractual rights,’ or ‘minor disputes’

which ‘enforce them.’”); Ertle v. Continental Airlines, 136 F.3d 690,

693 (10th Cir. 1998) (“Congress provided for a mandatory arbitral

mechanism, which vests exclusive jurisdiction ... with the ...

Adjustment Board.”); Zimmerman v. Atchison, T. & S. F. R. Co., 888

F.2d 660 (10th Cir. 1989).

12

than submit to the jurisdiction of the adjustment board.

The district court enjoined the strike and the court of appeals

affirmed. On review, this Court carefully analyzed the history

of the original 1926 Act, noting that “[tJhe obvious lack of any

compulsion toward a settlement of disputes was a basic

characteristic of the [original] Act and proved to be a major

weakness in the procedures for handling ‘minor disputes.’”

Id. at 35. This led to the Act’s 1934 amendments which, its

labor detractors correctly observed, brought “about compulsory

arbitration and prevent[ed] the use of the only weapon in the

hands of organized labor,” i.e., economic self-help. Jd. at 39.

The Court noted that the Act “endeavored to bring about stable

relationships between labor and management” by providing

compulsory and orderly mechanisms for resolving disputes. Id.

at 40. When a union seeks to achieve its goals by self-help

instead, the Court held, it must be enjoined.

Similarly, in BLE v. Louisville & N. R.R., the union sought

to enforce its construction of an arbitration award by ajob action,

rather than through the Act’s procedures for enforcing arbitration

awards. The district court enjoined the job action, the court of

appeals affirmed, and this Court agreed. The

statutory grievance procedure is a mandatory,

exclusive, and comprehensive system for resolving

grievance disputes. . . . The right of one party to place

or without the consent of the other, has been firmly

established. And the other party may not defeat this

right by resorting to some other forum. . . . Congress

had intended the grievance procedures [of the Act]

to be a compulsory substitute for economic self-help,

not merely a voluntary alternative to it.

373 U.S. at 38-39 (emphasis added, citations omitted).

Accordingly, the union’s attempt to force a solution to the dispute

in “some other forum,” i.e. through concerted conduct, rather

than in arbitration, was properly enjoined.

The court of appeals here reversed the injunction ABX

obtained in the district court, holding that the job action was

an alternative to arbitration the Union was entitled to select.

That result cannot possibly be reconciled with the Court’s

decisions or the text of the Act.°

II. The Court Of Appeals Ignored These Fundamental

Principles

As explained above, the court of appeals’ decision cannot

be reconciled with the Court’s cases, and the court below did

not try to do so. Rather than attempting to grapple with the

Court’s opinions directly, the court of appeals identified two

characteristics that, it found, distinguished the case at hand from

contrary appellate decisions and made injunctive relief

unavailable to ABX. Neither characteristic is relevant to the

principles on which the Act is based or to the analysis sanctioned

by this Court’s prior decisions

A. The Prohibition On Self-Help Applies To Major And

Minor Disputes

The court began by asserting that in a minor dispute, “there

is no requirement [that a union] maintain the status quo,

thus making certain types of concerted action available that

9. The courts of appeals, until now, have universally recognized

that collective economic action in derogation of the Act’s minor dispute

procedures must be enjoined. The decision below is therefore in direct

and irreconcilable conflict with, at least, the following appellate

decisions: Chicago & N.W. Transp. Co. v. RLEA, 908 F.2d 144 (7th Cir.

1990); Southeastern Pa. Transp. Auth. v. Brotherhood of R. Signalmen,

882 F.2d 778 (3d Cir. 1989); Long Island R.R. v. IAM, 874 F.2d 901

(2d Cir. 1989), cert. denied, 493 U.S. 1042 (1990); Missouri Pac. Ry. v.

UTU, 782 F.2d 107 (8th Cir. 1986); Atchison, T. & S. F. R. Co. v. UTU,

734 F.2d 317 (7th Cir. 1984); Trans Int'l Airlines, Inc. v. Teamsters, 650

F.2d 949 (9th Cir. 1980); Southern Pac. Transp. Co. v. UTU, 491 F.2d

830 (9th Cir. 1974); Piedmont Aviation, Inc. v. ALPA, 416 F.2d 633

(4th Cir. 1969); Illinois Cent. R.R. v. BRT, 398 F.2d 973 (7th Cir. 1968);

Switchmen'’s Union v. Southern Pac. Co., 398 F.2d 443 (9th Cir. 1968);

Order of R. Conductors & Brakemen v. Spokane, P. & S. R. Co., 366

F.2d 99 (9th Cir. 1966).

14

would not be during a major [or contract formation] dispute.”

Pet. App. 12a. As previously noted, however, this Court has

twice affirmed injunctions entered to prevent unions from using

economic self-help as a mechanism for resolving minor disputes.

The Court also has made clear that economic self help is

prohibited in minor as well as major disputes. In the minor

dispute context, this Court has held explicitly, that “Congress

. . intended the [Act’s] grievance procedures to be a compulsory

substitute for economic self-help, not merely a voluntary

alternative to it.” Louisville, 373 U.S. at 38-39. The Court also

has held that the Act’s central imperative — that the parties use

the Act’s dispute resolution processes rather than self help —

applies to “all disputes ... arising out of the application of

agreements” and thus applies “to all disputes, both major and

minor. . . .” Elgin, J. & E. Ry v. Burley, 325 U.S. at 724-25, 729

(1947). For this reason, the court in Louisville, 373 U.S. at 40,

explicitly rejected “the . . . argument. . . that Congress intended

to permit the settlement of minor disputes through the interplay

of economic force. . . . [This assertion] is squarely in conflict

with the basic teaching of” the Court’s prior cases. When a

union tries to do so, it must be enjoined.

B. The Form Of Self-Help Chosen By The Union

Is Irrelevant; Any Effort To Avoid The Act’s

Mandatory Procedures Is Unlawful

The court of appeals then held that the RLA permits unions

to pressure employers to capitulate in grievance disputes so long

as the economic weapon selected by the union does not result

in delays or cancellations. This distinction finds no support in

the language of the Act, its policies, or the decisions of this

Court.

First, as described above, the Act makes arbitration before

a system board the mandatory and exclusive recourse for

“all disputes . . . arising out of the application of agreements,”

and this Court has held that grievance disputes cannot lawfully

be decided “through the interplay of economic force.” Louisville.

373 U.S. at 40. Nothing in the Act distinguishes between

15

permissible and impermissible types of economic force a union

might use to compel a non-arbitral resolution of minor disputes;

any form of economic force used to wrest jurisdiction over a

minor dispute from the adjustment boards is impermissible.

The Court noted in Louisville that “economic self-help” is

improper in a minor dispute and must be enjoined, and failed to

establish separate categories for permissible and impermissible

forms of “economic self-help.” 373 U.S. at 39. Again in Chicago

River, the Court characterized “economic duress” generally

as an unlawful alternative to arbitration. 353 U.S. at 34. To be

sure, “most of the litigation concerning union status quo

violations has involved strikes, [but] the rules developed in those

cases also apply to other concerted actions designed to exert

economic pressure by interfering with the carrier’s normal

operations.” Douglas L. Leslie, The Railway Labor Act 249

(American Bar Association, BNA 1995).'°

10. See, e.g., United Air Lines, Inc. v. IAM & AW, 243 F.3d 349

(7th Cir.) (slowdown, including ban of voluntary overtime, should have

been enjoined), cert. denied, 122 S. Ct. 202 (2001); Delta Air Lines,

Inc. v. ALPA, 238 F.3d 1300 (11th Cir.) (pilot union should have been

enjoined to exert every reasonable effort to stop pilots’ collective ban

on voluntary overtime), cert. denied, 532 U.S. 1019 (2001); Long Island

R.R. v. System Fed’n No. 156,368 F.2d 50, 52 (2d Cir. 1966) (slowdown

enjoined when the union urged its members to “follow the rules strictly”);

Itasca Lodge 2029 v. Railway Express Agency, Inc., 391 F.2d 657 (8th

Cir. 1968) (enjoining union from calling special meetings that disrupted

operations and had effect of strike); American Airlines, Inc. v. TWU, 84

LRRM (BNA) 2114 (N.D. Tex. 1972) (affirming injunction against

“concerted and deliberate efforts to reduce output and efficiency in order

to gain concessions from the employer . . . outside of and without regard

to the grievance and arbitration procedures”), aff'd mem., 474 F.2d 1344

(Sth Cir. 1973); Texas Int'l Airlines, Inc. v. ALPA, 518 F. Supp. 203, 210

(S.D. Tex. 1981) (union urging pilots to “be professional” and maintain

their “standards of operations” and “adhere to company policies, and

contractual agreements” are indicia of unlawful job action); COMAIR,

Inc. v. ALPA, No. 99-250 (E.D. Ky. Dec. 21, 1999) (enjoining pilot

slowdown; “Defendant and ALPA and its members have violated the

(Cont’d)

16

As a practical matter, the law could not be otherwise if the

Act is to work. Given the enormous discretion airlines

necessarily give to their employees — especially to pilots — in

effecting the carrier’s operations, the court of appeals’ rule

permitting job actions short of strikes would be disastrous.

Unions are adept at the “inside game,” and often prefer it to

strikes because the Union can maintain some degree of

“plausible deniability,”"' and its members can continue to work,

draw their pay checks, and are not subject to permanent

replacement.’ The preferred tactics include work-to-rule or

(Cont'd) ,

status quo by the manner and means in which its members have written-

up mechanical deficiencies”); Metro-North Commuter R.R. v. Local 808,

Teamsters, 1988 U.S. Dist. LEXIS 10648, at *4-5 (S.D.N.Y. 1988)

(concerted ban on overtime enjoined; prior to job action, employees

were not required to work overtime but customarily and regularly sought

this lucrative work; union instructed its members not to work overtime

except in emergency situations; “The clear inference . . . is that [union’s]

purpose was to put pressure on [the carrier] in the ongoing negotiations

over a new collective bargaining agreement”); Long Island R.R. v. System

Fed'n No. 156, 289 F. Supp. 119, 125 (E.D.N.Y. 1968) (slowdown and

concerted refusal to work overtime “clearly constituted a change in the

practice existing prior to July.26, 1968, and a form of self-help designed

to bring pressure against the railroad and to defeat the purposes of the

Railway Labor Act”).

11. For example, in Delta, 238 F.3d at 1302-303, the pilots’ union

urged its members to stay “united” and emphasized the “individual

choice” of its members to refrain from bidding on overtime. In court,

the union maintained that it was a mere bystander to the “grass roots”

efforts of its members which it had no obligation to correct. The Eleventh

Circuit concluded otherwise.

12. The International Association of Machinists’ primer,

“The Inside Game,” pp. 16-17, provides:

The central idea of a “work-to-rule” campaign is the same

in any place of employment, . . .— do only what you were

hired to do, what you are absolutely required to do. . . .

Work exactly to your job description. . . . If your contract

(Cont'd)

17

“fly safe” campaigns, overtime embargoes, the increased use of

fuel, decreases in on-time performance, and sick-outs. Pilots,

in particular, have been able to abuse the commitment of every

airline to safety, and the exceedingly complex work and

scheduling rules in the industry, by engaging in a variety of

unlawful practices aimed at forcing labor disputes away from

the arbitrator and the bargaining table. For example, if pilots

collectively increase the rate at which they burn fuel or

inappropriately increase the number of maintenance items they

“write up,” they can impose enormous costs on the carrier in a

manner that makes discipline of the individual pilots almost

impossible, lest the carrier be accused of disregarding “safety”

or passenger comfort. If the union’s telephone hotline or email

messages “remind” pilots to make sure that they execute their

pre-flight checks meticulously and thus “fly safe,” or if they

exhort members to call in sick if they feel unwell (after

describing a bargaining or grievance dispute with management)

how can the airline effectively respond?

Airline unions lately have been particularly fond of the

overtime embargo as a means for compelling an end to labor

disputes on their terms, taking refuge in the fact that on an

individual basis, overtime is usually voluntary and pilots acting

as individuals are typically permitted contractually to refuse to

bid for the extra flying. See, e.g., United Air Lines, Inc. v. IAM

& AW, 243 F.3d 349 (7th Cir.) (slowdown, including ban of

voluntary overtime), cert. denied, 122 S. Ct. 202 (2001); Delta

Air Lines, Inc. v. ALPA, 238 F.3d 1300 (11th Cir.) (collective

(Cont'd)

permits, refuse to work overtime or resist overtime by

whatever means are legally available. Work to the clock.

If your hours are up, leave your work where it is and do not

hurry to finish tasks “under the whistle.”

A cartoon character tells the boss “Eighty-three people called in sick,

nobody will work overtime, the phones are jammed and Miss Hadley

refuses to walk your dog.” A copy of this manual has been lodged with

the Clerk's Office for the Court’s convenience, and copies have been

served on the parties.

18

ban on voluntary overtime), cert. denied, 532 U.S. 1019 (2001).

In these cases, the union knows and counts on the fact that it

Will be all but impossible for the airline to distinguish those

individuals acting under the union’s direction from those simply

choosing to avoid the extra work.

of individual pilot choice, but the consequence of a plan

conceived and executed by the Teamsters and its officers, and

enforced by harassment of those with the temerity to resist the

Moreover, the Act was intended “[t]o avoid any interruption

to commerce or to the operation of any carrier engaged therein”:

the phrase is in the disjunctive. 45 U.S.C. § 151a (emphasis

added). While interstate commerce may not have been

interrupted by the Teamsters’ overtime embargo (because no

flights were canceled or delayed), the operations of ABX were.

ABX’s normal operations include bidding on and operating

“seasonal” traffic. ABX’s customers expect the carrier, like all

Cargo airlines, to be capable of handling seasonal surges in

shipments. If a cargo carrier cannot transport the seasonal traffic,

the customer may move all of its business — seasonal as

well as the routine, year round shipments — to a competitor.

The Teamsters’ campaign against volunteer flying shut down

the seasonal portion of the airline’s normal operations, thereby

13. ABX did not sue over a claimed contractual right to force

overtime; it sought to enforce a statutory obligation on the part of the

for overtime, but the district court and the court of appeals held to the

contrary, Pet. App. 8a-9a; 20a-21a, and the meaning of the contract is

irrelevant in this context.

19

costing ABX $3 million in likely profits and damaging its

reputation among potential customers.

Finally, the rule adopted by the court of appeals poses a

Hobson’s choice for management by creating a perverse

incentive for the carrier to eschew mitigating measures that

might be taken to minimize the impact of union self-help on

the traveling and shipping public. Rather than attempting to

mitigate the operational impact of the job action, an airline faced

with a union-enforced overtime embargo would be well-advised

to cancel the flights that could not otherwise be staffed, leaving

unserved the passengers or shippers involved. Under the Sixth

Circuit’s new rule, only in this circumstance would the airline

be entitled to injunctive relief. There is nothing in the text of

the statute or its animating purposes to recommend such a bizarre

and counter-productive result, and the court of appeals offered

no rationale for that conclusion.

III. This Case Is Appropriate For Summary Reversal

This Court has the discretion to dispose of cases like this

one summarily. Rule 16.1. In the past, the Court has used this

device to decide cases that at once pose questions important

enough to review, but also involve settled law, undisputed facts,

and clear legal error. Schweiker v. Hansen, 450 U.S. 785, 791

(1981) (Marshall, J., dissenting); see also Clark County Sch.

Dist. v. Breeden, 532 U.S. 268, 271 (2001) (summarily reversing

where opinion below “cannot remotely” be reconciled with what

“[the Court’s] cases require”); Major League Baseball Players

Ass'n v. Garvey, 532 U.S. 504, 505, 510 (2001) (reversing

summarily where decision below was “baffling” and

continued viability of the RLA’s processes. The case, however,

could hardly be more straightforward. The court of appeals held

that the union was entitled to use the Act’s grievance procedures

20

if it liked, but could elect to use economic self-help instead if it

found that alternative more efficacious. No further briefing or

argument is needed either to identify the error in that conclusion

or to Correct it. Accordingly, the Court should grant certiorari

and summarily reverse.

CONCLUSION

The petition should be granted and the decision of the court

of appeals reversed.

Respectfully subinitted,

RosBert A. WARREN Joun J. GALLAGHER*

Davip A. BerG NEAL D. MOLLEN

AIR TRANSPORT ASSOCIATION MARGARET H. Spurn

OF AMERICA, INC. PAu, Hastinas, JANOFSKY

1301 Pennsylvania Ave.,N.W. & WaLker LLP

Suite 1100 1299 Pennsylvania Ave., N.W.

Washington, D.C. 20004-1707 Tenth Floor

Washington, D.C. 20004-2400

Rosert J. DeLucia (202) 508-9500

AIRLINE INDUSTRIAL RELATIONS

CONFERENCE JOANNA L. MoorRHEAD

1300 19th Street, N.W. NATIONAL RamLway LABOR

Washington, D.C. 20036 CONFERENCE

1901 L Street, N.W.

Washington, D.C. 20036

Attorneys for Amici Curiae

* Counsel of Record