Amicus Curiae Brief — National Railway Labor Conference v. Railway Labor Executives' Ass'n

In the Supreme Court of the Upilee Be

OCTOBER TERM, 1994 DEC 14 1994 |

NATIONAL RAILWAY LABOR Conte EME: OF THE CLERK

PETITIONER

Vv.

RAILWAY LABOR EXECUTIVES’ ASSOCIATION, ET AL.,

RESPONDENTS

BURLINGTON NORTHERN RAILROAD COMPANY,

PETITIONER

Vv.

NATIONAL RAILWAY LABOR EXECUTIVES’ ASSOCIATION,

ET AL., RESPONDENTS

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF OF THE AIRLINE INDUSTRIAL RELATIONS

CONFERENCE AND THE REGIONAL AIRLINE

ASSOCIATION AS AMICI CURIAE IN SUPPORT

OF THE PETITIONERS

ROBERT J. DELUCIA Harry A. RISSETTO

AIRLINE INDUSTRIAL THOMAS E. REINERT, JR.*

RELATIONS CONFERENCE RAYMOND C. KOLLS

1920 N Street, N.W. MorcGAN, LEwis & BocKIus

Washington, D.C. 20036 1800 M Street, N.W.

(202) 861-7552 Washington, D.C. 20036

WALTER COLEMAN (202) 467-7084

REGIONAL AIRLINE Counsel for Amici Curiae

ASSOCIATION Airline Industrial Relations

Suite 700 Conference and the Regional

1101 Connecticut Ave., N.W. Airline Association

Washington, D.C. 20086

(202) 857-1170

December 16, 1994 * Counsel of Record

Witson - Eras Printing Co., inc. - 789-0096 - WasniINGcTON, D.C. 26001 i

TABLE OF CONTENTS

OF ATTIC ccccciicieiiertnnccintiacticscnemncctiicinis

INTEREST OF AIRCON AND RAA AS AMICI

PRI is cticicesicanapeesticteceianeselathbindpsiaaehibcnnidanasanmncioosantgapiahons

TT ti hisesicatichcinesstaciaseiieabablinhsipne Sammi naibitantsiguapienl

I. THE EN BANC DECISION WILL HAVE A

DESTABILIZING EFFECT ON LABOR RE-

LATIONS IN THE AIRLINE INDUSTRY........

II. THE AIRLINE MERGER PROCEDURES DO

NOT RESULT IN “CARRIER-INVOKED”

REPESENTATION INVESTIGATIONS ...........

Ill. THE RLA GRANTS THE BOARD AUTHOR-

ITY TO REVIEW THE CONTINUED VALID-

ITY OF BOARD-ISSUED CERTIFICATIONS

WHEN CORPORATE TRANSACTIONS

CHANGE THE IDENTITY OR COMPOSI-

TION OF THE CARRIER FOR WHICH THE

CERTIFICATION WAS ISSUED ........0.00000.0.......

aN soc iansinchinnensacnsientisinsaauiiitaiihidiatbseiiaetmmidiaacselcs

Page

ii ‘

'

TABLE OF AUTHORITIES

COURT CASES Page

Air Line Pilots Association v. Texas International

Airlines, Inc., 656 F.2d 16 (2d Cir. 1981)........ 6

Air Line Employees Association v. Republic Air-

lines, Inc., 7198 F.2d 967 (7th Cir.), cert. denied,

oe SO ei ae 6 |

Association of Flight Attendants, AFL-CIO v.

USAir, Inc., 24 F.8d 1482 (D.C. Cir. 1994)........ 12

Brotherhood of Maintenance of Way Employees v.

Grand Trunk Western Railroad, 961 F.2d 1245

SS a ee 12

Brotherhood of Railway & Steamship Clerks v.

United Air Lines, Inc., 325 F.2d 576 (6th Cir.

| EE LI! NE ERE cho 6

Brotherhood of Railway & Steamship Clerks v.

Association for the Benefit of Non-Contract

Employees, 380 U.S. 650 (1965) -.........0000000200000.... 9

Butcher v. Maybury, 8 F.2d 155 (W.D. Wash.

CE Cree en RS aH NT ne Re I Sr PTT 13

Delpro Co. v. Brotherhood of Railway Carmen,

519 F. Supp. 842 (D. Del. 1981), aff'd, 676 F.2d

960 (3d Cir. 1982), cert. denied, 459 U.S. 989

CREE sc sscniscisinticisstichiiciiecieataatatiantleceiaailicel hice 11

IBTCHWA, Local Union No. 2707 v. Western Air

Lines, Inc., 813 F.2d 1359 (9th Cir. March 31,

1987), vacated and remanded, 484 U.S. 806

CIID keisteiiiciinsinnatibhietenatit tie alia aire aiid 6

International Association of Machinists v. North-

east Airlines, 586 F.2d 975 (1st Cir.), cert. de-

OR SG EF ee 6

International Broth. of Teamsters v. Texas Inter-

national Air, 717 F.2d 157 (5th Cir. 1983) ........ 6

International Brotherhood of Teamsters v. NMB,

118 Lab. Cas. (CCH) 9 10,678 (D.D.C. 1990)... 3

International Longshoremen’s Association vv.

NMB, 870 F.2d 738 (D.C. Cir. 1989) -.................. 12

May et al. v. Shuttle, Inc. et al., C.A. No. 94-1019

Ee 7

Mounts v. Chafin, 411 S.E.2d 481 (W.Va. 1991)... 13

ili

TABLE OF AUTHORITIES—Continued

Page

Penn Central Merger Cases, 389 U.S. 486 (1968).. 12

Railway Labor Exec. Ass’n v. National Mediation

Bd., 29 F.8d 655 (D.C. Cir. 1994) 2.0.0.0... 2,4

Switchmen’s Union of North America v. National

Mediation Board, 320 U.S. 297 (1948) 0000000000... 4,12

Western Air Lines v. International Brotherhood

of Teamsters, 480 U.S. 1801 (April 2, 1987)... 7

Woodbury v. Municipal Council of Gloucester, 61

RR RD |) ee acre ar eeena 13

NATIONAL MEDIATION BOARD CASES

Air Wisconsin/Aspen Airways, 18 NMB 836

RT NS eS aE -: £0 EE Re SD Se 5

Alaska Air/Jet America, 15 NMB 42 (1987)........ 5

American Airlines/Air California, 14 NMB 379

ac patina cdseccdddesabiondewmeee 5

Braniff/Florida Express, 15 NMB 294 (1988)........ 5

British Airways/British Caledonian Airways, 16

a A aS COOP aN 5

Command Airways/Nashville Eagle, 18 NMB 372

a fr a ee OS 5

Continental Airlines/Continental Express, 20

IERIE i RE RR 10

Delta Airlines/Western Airlines, 14 NMB 291

Se ai ER ea eon SO 5, 6,7

Eastern Airlines, Inc., 17 NMB 482 (1990) ........... 10

Federal Express/Flying Tiger Line, 16 NMB 433

REECE SSMS ASTRO TARO Re OT 5, 6

Flagship Airlines, Inc., 20 NMB 1389 (1998) ........... 10

Henson Aviation, Inc., 18 NMB 441 (1991) .......... 10

Metroflight/Chaparral Airlines, 18 NMB 56

Is sinlisapdiapnaons 5

Midway Airlines/Air Florida, 14 NMB 447

ROSES SNES aE eee Se, cee SC 5

Pennsylvania Airlines/Allegheny Commuter, 19

8. EER ee eee Se, 5

Precision Valley Aviation, 18 NMB 486 (1991).... 10

iv

TABLE OF AUTHORITIES—Continued

Page

Procedures for Handling Representation Issues

Resulting from Mergers, Acquisitions, or Con-

solidations in the Airline Industry, 14 NMB 388

CRIED - neseticctancudtaeateeitnietnatisncadthdtasitelcnen 2,5, 10, 12

Procedures for Handling Representation Issues

Resulting from Mergers, Acquisitions, or Con-

solidations in the Railroad Industry, 17 NMB

RE SII re vee a EE ete eee 2,3

Republic Air Lines/Hughes Air Corp., 8 NMB 49

(| NER REEASSS “EPO eee Ome 8

SASHA/TAN, 19 NMB 17 (1991) ............222..---c0000ee 5

TWA/Ozark, 14 NMB 218 (1987) .......................... 5, 8, 10

USAir/Piedmont, 16 NMB 412 (1989) .................. 5, 6

USAir/PSA, 15 NMB 185 (1988) ............................ 5

USAir/Shuttle, 19 NMB 388 (1992) ...................... 5,7

STATUTES

Railway Labor Act, Section 2 Fourth, 45 U.S.C.

ETE SITE sccscscisdeinesinatieisanentiiddeniondbuipbidebidlibiauantadiis tliat 6

Railway Labor Act, Section 2 Ninth, 45 U.S.C. .

Oe Sa hens hc acahtaddiciinlabeeiiaeinlnadlisiniaiaige 10

ADDITIONAL AUTHORITIES

Be MIG SIO HI cdescicietsncatesnissbicnenicpaheaunenaseenuntcdibdehendcbicibin 13

i I EE I ctiniolvaikehciinpinssn sgeiioniosianipabinigninsibbiniiiicananthabiibens 1i

In the Supreme Court of the United States

OCTOBER TERM, 1994

No. 94-890

NATIONAL RAILWAY LABOR CONFERENCE,

PETITIONER

Vv.

RAILWAY LABOR EXECUTIVES’ ASSOCIATION, ET AL.,

ET AL., RESPONDENTS

No. 94-907

BURLINGTON NORTHERN RAILROAD COMPANY,

PETITIONER

Vv.

NATIONAL RAILWAY LABOR EXECUTIVES’ ASSOCIATION,

ET AL., RESPONDENTS

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

BRIEF OF THE AIRLINE INDUSTRIAL RELATIONS

CONFERENCE AND THE REGIONAL AIRLINE

ASSOCIATION AS AMICI CURIAE IN SUPPORT

OF THE PETITIONERS

This brief is submitted by the Airline Industrial Rela-

tions Conference (“Aircon”) and the Regional Airline

Association (“RAA”), as amici curiae in support of the

petitioners.’

1 The parties have consented to the filing of this brief. Copies

of the letters of consent have been filed with the Clerk of the Court

concurrently with this brief.

2

INTERESTS OF AIRCON AND RAA AS AMICI CURIAE

Aircon is an unincorporated voluntary association of

United States scheduled air carriers formed to facilitate

the exchange of ideas and information concerning person-

nel and labor relations issues, and to represent its mem-

ber carriers in these areas with respect to legislative,

judicial and administrative matters. Its carrier members

include most major and national scheduled air carriers in

the United States.

The Regional Airline Association is a trade organiza-

tion whose members are engaged in scheduled air trans-

portation of passengers and cargo in short-haul markets

throughout the United States and its territories. The RAA

is chartered to promote a healthy business climate for the

growth of regional airlines by working with appropriate

legislative and regulatory bodies and with the public, the

press and other organizations, on issues affecting the in-

dustry. In 1992, RAA members transported approxi-

mately 93 percent of all regional airline passengers.

Aircon, the RAA and their member air carriers have a

substantial interest in this case.* The en banc decision of

the lower court concludes by the barest majority (5 to 4)

that the National Mediation Board (“NMB” or the

“Board”) lacked statutory authority under the Railway

Labor Act (“RLA”) to promulgate its Railroad Merger

Procedures.’ The decision therefore implicates the Board’s

counterpart Airline Merger Procedures* which apply to

2 The decision of the en banc panel of the lower court is reported

as Railway Labor Exec. Ass’n v. National Mediation Bd., 29 F.3d

655 (D.C. Cir. 1994) and is also appended to Petitioner Burlington

Northern Railroad Company’s petition for writ of certiorari at

pages la through 62a.

3 Procedures for Handling Representation Issues Resulting from

Mergers, Acquisitions, or Consolidations in the Railroad Industry,

17 NMB 44 (1989).

4 Procedures for Handling Representation Issues Resulting from

Mergers, Acquisitions, or Consolidations in the Airline Industry,

14 NMB 388 (1987).

3

Aircon’s and RAA’s member carriers. Since the 1987

inception of the merger procedures, the Board has decided

more merger cases under the Airline Merger Procedures

than the Railroad Merger Procedures because of the

greater frequency of such transactions in the airline

industry.°

The Airline Merger Procedures are critical in the air-

line industry because they establish a reasoned and well-

ordered procedure under which the Board will review

and update its previous representation determinations

(known as “certifications”) regarding the unions that will

represent employee groups (known as “crafts or classes”),

in the wake of mergers or other transactions that change

a carrier’s corporate identity or structure. Because of the

frequency of transaction-driven changes affecting union

representations in the heavily-unionized airline industry,

the Airline Merger Procedures have played a central role

in avoiding labor strife and related litigation in this vital

transportation industry.

Aircon and RAA fully support the positions taken by

Petitioners National Railway Labor Conference (“NRLC”)

and Burlington Northern Railroad Company (“BN”) with

regard to the Railroad Merger Procedures. Neither of

those entities, however, is an air carrier, or represents air

carriers, or can speak directly to the particularly desta-

bilizing impact on the airline industry of judicial invali-

dation of the Airline Merger Procedures. Aircon and

RAA, therefore, respectfully submit that because of its

potential impact on the airline industry, the en banc deci-

sion invalidating the parallel Railroad Merger Procedures

5 The Railroad Merger Procedures were developed by the Board

in 1989 based on the Airline Merger Procedures developed earlier

in 1987. Railroad Merger Procedures, 17 NMB at 44. An earlier

challenge to the Airline Merger Procedures on similar grounds of

NMB authority was rejected. International Brotherhood of Team-

sters v. NMB, 118 Lab. Cas. (CCH) { 10,678 (D.D.C. 1990).

® See Note 7 infra.

4

presents an important question of federal law within the

meaning of Rule 10.1(c) of this Court.

ARGUMENT

I. THE EN BANC DECISION WILL HAVE A DE-

STABILIZING EFFECT ON LABOR RELATIONS

IN THE AIRLINE INDUSTRY.

It is not hyperbole to state that judicial invalidation

of the Airline Merger Procedures would be a prescription

for chaos in airline labor relations. Indeed, Judge Wil-

liams in his dissent below, cited the destabilizing impact

of the majority’s decision on the airline industry as

Aircon and the RAA had argued as amici below:

[I]nvalidation of the merger procedures would likely

place a cloud over the status of the certifications,

voluntary recognitions, and revocation of certifica-

tions resulting in [previously decided applications],

and could result in unnecessary litigation and disrupt

the stable post-merger collective bargaining relation-

ships now in place.

The destabilizing impact of the loss of the merger

procedures would be even more significant in the

future. ...

[Before the merger procedures, carrier decisions

made without NMB clarification] frequently resulted

in unresolved disputes, litigation and potential disrup-

tions of airline operations.

29 F.3d at 675; BN petition at 46a.

This Court has long recognized that questions of

whether one union or another union is the proper repre-

sentative of a group of employees is “an explosive prob-

lem.” Switchmen’s Union of North America v. National

Mediation Board, 320 U.S. 297, 303 (1943). Partly as

the result of the 1978 deregulation of the airline industry,

there has been a proliferation of mergers and other cor-

5

porate transactions that continually raise RLA representa-

tion questions. Many of the most difficult labor disputes

in the post-deregulation airline industry have involved the

impact of corporate transactions on union representation

and collective bargaining.

The Board reacted to this proliferation of merger-

related representation disputes with its decision in TWA/

Ozark, 14 NMB 218 (1987). That decision clarified

the Board’s policies with respect to the effect of mergers

on existing union certifications and established interim

“merger procedures,” which were formalized in the Air-

line Merger Procedures that same year. Airline Merger

Procedures, 14 NMB 388 (1987). Both the interim

and final procedures mandated carrier notice to the Board

concerning pending transactions, so the Board could sua

sponte determine the impact of the transaction on exist-

ing NMB certifications.

Under TWA /Ozark and the Airline Merger Procedures,

the Board has been remarkably successful in resolving

potentially divisive representation disputes that invariably

arise from corporate mergers or similar transactions. The

Board has decided 16 airline industry merger cases since

1987.’ Those 16 cases have resolved the representation

of almost 100 different crafts or classes on the industry’s

largest airlines—American, Delta, Federal Express, TWA,

and USAir.

7 USAir/Shuttle, Inc., 19 NMB 388 (1992): Pennsylvania Air-

lines/Allegheny Commuter, 19 NMB 362 (1992); SAHSA/TAN,

19 NMB 17 (1991); Command Airways/Nashville Eagle, 18 NMB

872 (1991); Air Wisconsin/Aspen Airways, 18 NMB 336 (1991);

Federal Express/Flying Tiger Line, 16 NMB 433 (1989); Metro-

flight/Chaparral Airlines, 18 NMB 56 (1990); USAir/Piedmont,

16 NMB 412 (1989) ; British Airways/British Caledonian Airways,

16 NMB 17 (1988): Braniff/Florida Express, 15 NMB 294 (1988);

USAir/PSA, 15 NMB 135 (1988); Alaska Air/Jet America, 15

NMB 42 (1987); Midway Airlines/Air Florida, 14 NMB 447

(1987); Delta Airlines/Western Airlines, 14 NMB 291 (1987);

American Airlines/Air California, 14 NMB 379 (1987); TWA/

Ozark, 14 NMB 218 (1987).

6

Most merger-related representation disputes have been

resolved by the Board determining which of the existing,

pre-merger union certifications apply to the new, post-

merger carrier. Minority unions have had their certifi-

cations terminated by the Board only where the union

was unable to demonstrate sufficient employee support

among the combined, post-merger craft or class. See, e.g.,

Delta/Western, 14 NMB 291 (1987). Where the size

of merging workforces have been comparable, the Board

has deferred action on existing certifications pending an

election to determine the majority representative. See,

e.g., Federal Express/Flying Tiger, 16 NMB 433 (1989);

USAir/Piedmont, 16 NMB 412 (1989). As the 16 cases

illustrate, the Board has used the Airline Merger Pro-

cedures to resolve live representation disputes, arising

among employees, concerning who is the majority repre-

sentative of the combined craft or class of employees

under Section 2 Fourth of the Act, 45 U.S.C. § 152

Fourth.

Prior to the NMB’s promulgation of the Airline Merger

Procedures, representation disputes in the airline industry

had proliferated in the federal courts. See, e.g., Air Line

Employees Ass’n v. Republic Airlines, Inc., 798 F.2d

967 (7th Cir.), cert. denied, 479 U.S. 962 (1986); Int'l

roth. of Teamsters v. Tex. Int’l Air, 717 F.2d 157 (Sth

Cir. 1983); Air Line Pilots Ass’n v. Texas Int'l Airlines,

Inc., 656 F.2d 16 (2d Cir. 1981); Int'l Ass’n of Ma-

chinists v. Northeast Airlines, 536 F.2d 975 (1st Cir.),

cert. denied, 429 U.S. 961 (1976); Broth. of Railway

and Steamship Clerks v. United Air Lines, Inc., 325 F.2d

576 (6th Cir. 1963). The federal courts routinely de-

clined to resolve such disputes citing the NMB’s exclusive

jurisdiction over representation matters.

One such dispute involving the Delta-Western merger

came before Justice O’Connor. The Ninth Circuit en-

joined the Delta-Western merger less than 24 hours before

its consummation. IBTCHWA, Local Union No. 2707 v.

7

Western Air Lines, Inc., 813 F.2d 1359 (9th Cir. March

31, 1987), vacated and remanded, 484 U.S. 806 (1987).

Justice O’Connor stayed the Ninth Circuit’s injunction

pending the filing and disposition of a writ of certiorari.

Justice O’Connor concluded that the Circuit’s decision

was contrary to “the great weight of the case law sup-

por[ting] the proposition that disputes as to the effect

of collective bargaining agreements on representation in

an airline merger situation are representation disputes

within the exclusive jurisdiction of the National Mediation

Board” and that the Circuit’s divergence from this prin-

ciple would likely prompt at least four Justices to vote to

grant certiorari. Western Air Lines v. International

Brotherhood of Teamsters, 480 U.S. 1301, 1305, 1307

(April 2, 1987) (O’Connor, J., in chambers) (emphasis

added). Soon after this 1986-87 litigation, the NMB

adopted its interim merger procedures, and resolved the

representation issues presented by the Delta-Western

merger. Delta Airlines/Western Air Lines, 14 NMB 291

(1987).

Judicial invalidation of the Airline Merger Procedures

potentially would raise the issue of the retrospective im-

pact on Delta/Western and the 15 other decided merger

cases—involving almost 100 NMB representation deter-

minations. Labor relations inertia and the fact that many

unions joined in “carrier invocation” of the Airline Merger

Procedures may, as a practical and legal matter, limit

such retrospective challenges.* But at a minimum, invali-

dation of the Airline Merger Procedures will cast a cloud

of uncertainty over many merger-related representation

\ determinations of the NMB.

} The prospective destabilizing impact of the en banc

decision is even more important. If the Airline Merger

wer 7

8 The amici are aware of one case, May et al. v. Shuttle, Inc.

et al., C.A. No. 94-1019 (SS), in which a collateral challenge to the

NMB’s USAir/Shuttle, 19 NMB 388 (1992) decision is being pur-

sued by a group of former Shuttie employees based upon the en banc

decision.

Se See AE tee wT Ms i ,

Procedures are not available, how will transaction-related

disputes concerning union representation be resolved in

future mergers? In the absence of Board direction, car-

riers and unions may be forced to return to the pre-

Merger Procedures approach, which regularly resulted in

unresolved disputes, litigation and potential disruptions

of airline operations. See TWA/Ozark, 14 NMB at 233.

An even more destabilizing potential outcome of the

panel decision would be multiple, minority union repre-

sentations within a single craft or class on an air carrier,

the pattern that the Respondents apparently espouse in

the railroad context. If the en banc decision stands, a

minority union in a merger could avoid having its certifi-

cation extinguished simply by not invoking the NMB’s

Section 2 Ninth processes. Where a minority union is

merged into a non-union craft or class (as in the Delta/

Western merger), no labor organization will have any in-

centive to apply to the Board to terminate the minority

union’s bargaining rights. When two or more unions have

been certified to represent employees in the same craft or

class, the en banc decision invites the unions to make deals

among themselves concerning post-merger preservation of

minority union representation. As long as the unions are

satisfied with their continued, partial representation and

do not make formal application to the NMB, then under

the en banc decision there would be no procedure to

achieve a single representative for each craft or class and

the Board, apparently, will be without jurisdiction over

this obvious representation dispute.

Such a “balkanization” of airline representation has

been expressly and wisely rejected by the Board.® In

Aircon’s and RAA’s view such fragmented representation

®“The pattern of representation which has resulted in the rail-

road industry has, in the Board’s judgment led to uneven repre-

sentation, duplication of effort, and confusion; and has significantly

reduced the ability of railroads to integrate operations and manage

a single rail system . . . [T]he Board does not intend to foster a

similar pattern of representation in the airline industry.” Republic

Air Lines/Hughes Air Corp., 8 NMB 49, 54-5 (1980).

9

would produce great labor relations discord and unneces-

sary litigation, would prevent the operational integration

of merged airlines, and would violate the RLA’s statutory

requirement of systemwide craft or class representation.”

Il. THE AIRLINE MERGER PROCEDURES DO NOT

RESULT IN “CARRIER-INVOKED” REPRESENTA-

TION INVESTIGATIONS.

A central assumption of the en banc decision is that

the Railroad Merger Procedures grant carriers standing to

initiate “carrier-invoked” representation investigations de-

spite the asserted absence of statutory authority to do so.

In design and application, however, the Airline and Rail-

road Merger Procedures are an exercise of the Board’s

inherent power to determine, after a change in the corpo-

rate identity or composition of the carrier, the continued

validity of certifications originally issued in representation

proceedings clearly within the Board’s jurisdiction. Thus,

the lower court erroneously read the merger procedures as

creating a “carrier-invoked” procedure, when, in fact, the

Board has enforced the Merger Procedures as an exercise

of the Board’s own power to police its prior certifica-

tions.”

Ironically, the Board first adopted the TWA/Ozark

interim merger procedures with the express purpose of

limiting, not expanding carrier influence over merger-

related representation issues. The Board found that under

10 Section 2 Fourth provides that: “The majority of any craft

or class of employees shall have the right to determine who shall

be the representative of the craft or class. . .” (emphasis added).

This singular usage in the statute mandates a single post-merger

representative, and provides an express statutory basis for the

Merger Procedures.

11 Despite the lower court’s ruling, Aircon and the RAA believe

that the Board has the authority to permit carriers to invoke rep-

resentation procedures. See Brotherhood of Railway and Steam-

ship Clerks v. Association for the Benefit of Non-Contract Employ-

ees, 380 U.S. 650, 666-67 (1965). Nonetheless, that issue is not

necessarily presented under the Railroad or Airline Merger

Procedures.

10

its prior decision “carriers have interpreted the Republic

case to give them independent authority to extinguish

existing certifications held by organizations on the ac-

quired carrier; to choose between recognition of organiza-

tions on its property or the acquired carrier; and to choose

whether or not employees on the acquired carrier will

be represented.” 14 NMB at 233.” Thus, in the absence

of the merger procedures, carriers, in effect, simply as-

serted the power to make de facto representation decisions.

In reaction, the Board exercised its statutory authority

Over representation issues by requiring carriers to give the

Board notice of mergers and similar corporate transac-

tions concurrent with required filings with other Federal

regulatory agencies. TWA/Ozark, 14 NMB at 241-2;

Airline Merger Procedures, 14 NMB at 390-1, Subpart

B (1). Indeed, Aircon members, after the public an-

nouncement of corporate transactions, have been advised

formally through letters from the NMB of their obligation

to file under the Merger Procedures.”

Thus, it is inaccurate to view the Railroad or Airline

Merger Procedures as giving carriers standing to present

representation disputes to the Board—the central reason

the en banc court found that the Railroad Merger Proce-

dures exceeded the NMB’s statutory authority. Rather,

the Board has mandated that carriers give the Board

12The TWA/Ozark decision was plainly intended by the Board

to assist incumbent unions’ interests in corporate transactions.

Airline unions have sought aggressively to have the Board take

jurisdiction and resolve “single carrier” issues presented by corpo-

rate relations between carriers. See, e.g., Continental Airlines/

Continental Express, 20 NMB 326 (1993); Flagship Airlines, Inc.,

20 NMB 139 (1993); Henson Aviation, Inc., 18 NMB 441 (1991);

Precision Valley Aviation, 18 NMB 486 (1991); Eastern Airlines,

Inc., 17 NMB 482 (1990).

13 This Board-imposed filing requirement has a statutory basis

in Section 2 Ninth, 45 U.S.C. § 152 Ninth, which provides: “The

Board shall have access to and have power to make copies of the

books and records of the carrier to obtain and utilize such infor-

mation as may be deemed necessary by it to carry out the purposes

and provisions of this paragraph.”

1]

notice of corporate transactions, so that the Board may

sua sponte investigate and determine the effect, if any, on

previously issued certifications. Any legal analysis of the

Board’s authority to issue and apply the Merger Proce-

dures must be premised upon the accurate characterization

of those procedures as an assertion of the Board’s author-

ity to determine the continued validity of its certifications.

Ill. THE RLA GRANTS THE BOARD AUTHORITY TO

REVIEW THE CONTINUED VALIDITY OF BOARD-

ISSUED CERTIFICATIONS WHEN CORPORATE

TRANSACTIONS CHANGE THE IDENTITY OR

COMPOSITION OF THE CARRIER FOR WHICH

THE CERTIFICATION WAS ISSUED.

The Board’s jurisdiction to determine the post-merger

validity of its previously-issued representation certifica-

tions, after a change in the carrier’s corporate identity, is

necessarily implied under Sections 2 Ninth and 2 Fourth

of the Railway Labor Act. The en banc court’s legal anal-

ysis is incorrect because it ignores both the Board’s statu-

tory authority to determine who is the carrier for repre-

sentation purposes and the fact that corporate transactions

invariably present the issue of which existing certifications

are applicable to a post-merger carrier.

Section 2 Ninth of the Act is carrier-specific: it deals

with disputes “among a carrier’s employees” and requires

the Board to certify representatives “to the carrier.” That

provision gives the Board the authority to determine, as

an initial matter in representation disputes, whether an

entity is a “carrier” under the Act’s definitions, and then

issue a Carrier-specific certification to a union. See, e.g.,

Delpro Co. v. Brotherhood of Railway Carmen, 519 F.

Supp. 842 (D. Del. 1981), aff'd, 676 F.2d 960 (3d Cir.

1982), cert. denied, 459 U.S. 989 (1983).

The Board’s statutory authority for the Merger Proce-

dures is not based upon a new representation application

from a group of employees, but rather, is derivative of

the Board’s authority to issue the original, carrier-specific

12

certifications which are affected by the corporate trans-

action. As the Board has correctly concluded, “the crea-

tion, change, and the termination of representation rights

are within the province of the Board under the Railway

Labor Act.” Airline Merger Procedures, 14 NMB at 389.

Mergers present the question of whether Board-issued,

Carrier-specific certifications are still valid under the Sec-

tion 2 Fourth requirement of systemwide representation,

and the Board has concluded that it has the authority

under Section 2 Ninth to resolve such issues.

The courts have clearly and consistently held that the

NMB has exclusive jurisdiction of representation disputes

and that the courts have no jurisdiction to adjudicate the

continued validity of Board-issued certifications. See

Switchmen’s Union of North America v. NMB, 320 U.S.

297 (1943). The Respondents’ ultimate argument,

adopted by the D.C. Circuit, is that the NMB has no

jurisdiction to modify or terminate its own certifications,

unless a union invokes the representation procedures with

a new dispute. But, the Railway Labor Act provides no

14 The Board’s authority in this area is analogous to that of any

administrative agency to retain jurisdiction over a matter after

initial resolution. See, e.g., Penn Central Merger Cases, 389 U.S.

486, 501, 521 (1968).

15 As Petitioners BN and NRLC have noted, the en banc deci-

sion’s conclusion otherwise is in conflict with a decision of the

Sixth Circuit upholding the Railroad Merger Procedures. See

Brotherhood of Maintenance of Way Employees v. Grand Trunk

Western Railroad, 961 F.2d 1245 (6th Cir. 1992); BN Petition at

23-25; NLRC Petition at 17-18. Moreover, the en banc decision is

inconsistent with the D.C. Circuit’s own prior decisions—including

a decision by Judge Edwards, author of the en banc decision—

giving effect to NMB actions changing, amending or terminating

previously-issued certifications. See International Longshoremen’s

Ass’n v. NMB, 870 F.2d 733 (D.C. Cir. 1989) (reviewing and re-

manding to the Board a case in which the NMB sua sponte termi-

nated previously issued certification); Association of Flight At-

tendants, AFL-CIO v. USAir, Inc., 24 F.8d 1482 (D.C. Cir. 1994)

(Edwards, J.) (determining contractual impact of NMB termination

of certifications in USAir/Shuttle, 19 NMB 388 (1992) ).

13

basis for concluding that the certified union should have

the unilateral power to determine the continued validity of

its own “license” to represent employees.”

The ultimate result of Respondents’ position and the

en banc decision is that the Board would have the power

only to issue certifications, and no statutory authority to

determine that a certification is no longer valid, even

when the carrier for whom it was issued has merged with

another carrier or no longer exists. That truncation of

Board authority makes no sense as a matter of national

labor policy, and there is no basis for the Court to find

that Congress intended such a limitation on the NMB’s

authority under Section 2 Ninth.

16 A Board-issued certification is a “license” to represent certain

employees of a carrier, and the Board’s role is analogous to a licens-

ing agency. At common law, a licensing agency’s authority to issue

licenses implicitly includes the authority to revoke the licenses.

See, 51 Am. Jur. 2d §58 Licenses and Permits; 53 C.J.S. § 51

Licenses; Mounts v. Chafin, 411 S.E.2d 481, 487 (W.Va. 1991);

Woodbury v. Municipal Council of Gloucester, 61 N.E.2d 647 (Mass.

1945) ; Butcher v. Maybury, 8 F.2d 155 (W.D.Wash. 1925).

14

CONCLUSION

The Court should grant review to determine whether

Congress’ intent to make the Board the sole arbiter of

representation disputes under the Act includes Board au-

thority to continue, modify, or terminate those certifica-

tions when the carrier’s identity or composition is changed

through a corporate transaction. Because that interpreta-

tion does no violence to the express language of Section 2

Ninth, and is consistent with the long-recognized exclusive

Board jurisdiction of representation disputes, upon review

the Court should reverse the 5 to 4 en banc decision of

the D.C. Circuit.

ROBERT J. DELUCIA

AIRLINE INDUSTRIAL

RELATIONS CONFERENCE

1920 N Street, N.W.

Washington, D.C. 20036

(202) 861-7552

WALTER COLEMAN

REGIONAL AIRLINE

ASSOCIATION

Suite 700

1101 Connecticut Ave., N.W.

Washington, D.C. 20036

(202) 857-1170

December 16, 1994

Respectfully submitted,

HARRY A. RISSETTO

THOMAS E. REINERT, JR.*

RAYMOND C. KOLLS

MorRGAN, LEWIs & BocKIuS

1800 M Street, N.W.

Washington, D.C. 20036

(202) 467-7084

Counsel for Amici Curiae

Airline Industrial Relations

Conference and the Regional

Airline Association

* Counsel of Record