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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1995
- **Citation:** 514 U.S. 1032

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0848%3A2. Public record. Not legal advice.