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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2002
- **Citation:** 535 U.S. 980

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0934%3A3. Public record. Not legal advice.