This is an action under the Railway Labor Act ("RLA") in which dissident members of the Allied Pilots Association ("APA") sue their employer, American Airlines ("AA"). The suit seeks to vindicate their right to participate in union affairs by distributing intra- union materials to their fellow employees, and orally soliciting their support, on such matters as whether to vote against ratification of a proposed collective bargaining agreement ("CBA"), and whom to elect to union office.
After plaintiffs' campaign efforts succeeded in defeating ratification of the first CBA negotiated between AA and the outgoing leadership of their union, and after ballots were mailed to union members for a vote on a new proposal, AA clamped down on employee speech, by issuing an edict that purported to bar all nonwork activity on AA's premises, but that is now admitted to have been directed only at union activity.
The Parties' Rival Theories Regarding Summary Judgment
Plaintiffs' opening memorandum set forth three separate legal theories for this action. Plaintiffs are entitled to partial summary judgment on two of those legal theories because there is no genuine issue about any facts material to liability on those theories.
First, AA violated the RLA when it interfered with their union organizational communications with their fellow employees in nonwork areas and nonwork times. This theory is based on the fact that AA overtly interfered with plaintiffs' union activity. Al though AA asserts its property rights as a ground for interfering with union activity, plaintiffs have drawn an analogy between similar prohibitions on employer conduct in section 8(a)(1) of the National Labor Relations Act ("NLRA") and section 2, Third and Fourth of the RLA ("Third/Fourth"), and suggested that AA's property rights give it no further basis for blocking union activity than do the property rights of employers covered by the NLRA. There is no dispute that American forbade such communications.
Second, AA discriminated against plaintiffs' union activity, and not only by limiting their in-person conversations and literature distributions at the workplace to non-union- related topics. In addition, AA forbade CBA or election-related postings on otherwise generally available bulletin boards; forbade employees to leave election and other CBA-re lated literature for other employees to pick up although commercial and other literature could be left for pick up; and forbade employees from coming to operations areas to discuss the CBA or the election even though they could come in to discuss any other sub ject. What is more, only employees on one side of the CBA were forbidden to campaign. Campaigning over both the CBA and the election was allowed by those who favored ratification of the contract. All this discrimination remains completely undisputed; there was no genuine issue in the records produced through discovery, and defendants' own motion for summary judgment does nothing to put these facts in dispute.
The third basis for this lawsuit is that AA's actions were based on its animus against those who were seeking to defeat ratification of the CBA, that is to say against one faction within the union, and for the very purpose of interfering with union organizational activity. However, AA has presented minimal evidence -- a sworn assertion by its supposed decision-maker -- that it had reasons for its action unrelated to anti-union animus. Because credibility disputes cannot be resolved on summary judgment, we did not seek summary judgment on this third theory because we believe that there is a genuine issue on the question of motive. AA does seek summary judgment on this third theory, however, because it contends that there is not a genuine issue on the question of motive.
In its own summary judgment motion, AA contends that none of plaintiffs' claims provide a sufficient basis for relief or, indeed, for federal jurisdiction under the RLA. This is true, AA contends, for several reasons. First, it says that the RLA provides no protection for employees' right to communicate with each other about the union if they are doing so at the workplace; the language of the RLA is said to be so different from that of section 8(a)(1) of the NLRA that no analogies can legitimately be drawn between those two sections. AA Mem. 17-18. Thus, AA simply denies that plaintiffs' first two legal theories are tenable as a matter of law.
Second, AA reads the Supreme Court's decision in TWA v. IFFA, 489 U.S. 426, 432-436 (1989), to limit RLA suits by union-represented employees against employers to a very narrow set of circumstances in which the employer is trying to destroy the union or otherwise engaging in a fundamental attack on union representation; instead of simply proving ordinary union animus, AA believes that plaintiffs must show a sort of "super- animus." AA Mem. 11-16. Third, in a related point, AA contends that RLA disputes involving union-represented employees are either minor disputes, to be settled through the grievance procedure, or major disputes, to be settled through negotiation. Id. 19-28. Fourth, AA contends that plaintiffs have not shown sufficient anti-union animus to warrant federal jurisdiction, because the RLA does not forbid employers from taking adverse action based on an employee's communication about a CBA, and in any event it was instead pursuing its legitimate interests in safety and avoiding disruption in the workplace. Id. 28- 37. Finally, AA advances some miscellaneous arguments which, it suggests, constitute a separate equitable defense to the litigation. Id. 37-42. For all of these reasons, AA con tends that it is entitled to summary judgment on plaintiffs' third legal theory (as well as its first two).
Summary of Argument
This memorandum shows that none of AA's arguments are sufficient either to grant summary judgment against plaintiffs or, for that matter, to warrant denial of plaintiffs' motion for summary judgment based on the two theories presented in our motion. First, we show that plaintiffs first and second legal theories, which do not require a showing that AA barred their communications for reasons motivated by anti-union animus, are sound bases for suit under RLA section 2, Third and Fourth. We argue that these sections are sufficiently analogous to the NLRA, at least with respect to the type of union activity at issue here, to warrant the conclusion that their campaigning was protected, and that AA's property rights give it no more protection than an NLRA employer would enjoy. Infra 5- 12.
Next, we show that AA's argument for a "super-animus" requirement lacks merit. This is because AA has misread both the Supreme Court's decision in TWA v. IFFA, which applies that requirement only to RLA cases in which the parties have exhausted the negotiating process and begun economic "self-help" (that is, a strike or lockout); but AA expands that rule to all suits by union-represented employees. Moreover, ALPA v. Eastern Airlines, 863 F.2d 891 (D.C. Cir. 1988), which all parties agree is the leading D.C. Circuit precedent for RLA suits by union-represented parties does not require any more than ordinary union animus. Infra 12-27.
Third, we explain why plaintiffs in this case meet the requirements imposed by dic tum in TWA v. IFFA for suits by union-represented employees in cases not involving self- help. That is, the RLA's private dispute resolution procedures do not provide an adequate means for them to obtain enforcement of their statutory rights under the RLA, and in any event AA's ban on union-related communications in the workplace calls into question employees free choice in designating their bargaining representatives. Infra 27-35.
Finally, we show that there are, in fact, genuine issues about whether AA was motivated by union animus or by a genuine concern about disruption or safety, infra pages 36-42, thus barring summary judgment on plaintiffs' third legal theory, and that AA's "clean hands" arguments are wholly lacking in merit. Infra 42-45.
I. Plaintiffs' Right to Engage in Union Organizational and Collective Bargaining Activity under RLA Section 2, Third and Fourth, Is Sufficiently Analogous to Their Rights under NLRA Section 8(a)(1), to Warrant Drawing an Analogy to Case Law Under the Latter Statute.
As we observed in our opening memorandum, at 19, both the Supreme Court, and lower federal courts including the D.C. Circuit and this Court, have repeatedly stated that precedents developed by the NLRB and affirmed by the federal courts under the NLRA may be applied, through reasoning by analogy, to cases under the RLA. E.g., TWA v. IFFA, 489 U.S. 426, 432 (1989), citing Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 377 (1969); see also ALPA v. O'Neill, 499 U.S. 65 (1991) (treating duty of fair representation under both statutes as undistinguishable). The language in section 8(a)(1) of the NLRA is sufficiently similar to the language in section 2, Third and Fourth of the RLA to warrant drawing an analogy between the two, and thus applying to the RLA those precedents that are based on similar language in the NLRA.
Thus, RLA section 2, Third provides as follows:
Representatives . . . shall be designated by the respective parties without interference, influence or coercion by either party over the designation of representatives by the other; and neither party shall in any way interfere with, influence or coerce the other in its choice of representatives. . . . [N]o carrier shall, by interference, influence or coercion seek in any manner to prevent the designation by its employees as their representatives of those who or which are not employees of the carrier.
RLA Section 2, Fourth, in turn, provides as follows:
Employees shall have the right to organize and bargain collectively through representatives of their own choosing. . . . No carrier, its officers or agents, shall deny or in any way question the right of its employees to join, organize or assist in organizing the labor organization of its employees, and it shall be unlawful for any carrier to interfere in any way with the organization of its employees, . . . or to influence or coerce employees in an effort to induce them to join or remain or not to join or remain members of any labor organization . . ..
In similar fashion, section 8(a)(1) of the NLRA forbids an employer "to interfere with, restrain or coerce employees in the exercise of the rights guarantees in section 157 of this title," and section 7, in turn, guarantees employees' right "to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . .."
Many courts have noted the strong resemblance between the NLRA and RLA provisions just quoted -- both outlaw employer actions that "interfere with" or "coerce" employees who seek to exercise the right to join, assist, or in other ways participate in their employee organizations. E.g., ALPA v. United Air Lines, 614 F. Supp. 1020, 1045 (N.D. Ill 1985), aff'd in part, 802 F.2d 886 (7th Cir. 1986) (affirming court relies heavily on NLRA analogies); Scott v. American Airlines, 488 F. Supp. 415, 419 (E.D.N.Y. 1980); Adams v. Federal Express, 470 F. Supp. 1356, 1363 (W.D. Tenn. 1979), aff'd on other grounds, 654 F.2d 453 (6th Cir. 1981). Sometimes an employer "interferes" or "coerces" by purporting to outlaw the activity, and sometimes by retaliating for the activity after the fact; but in both cases the similarity between the prohibitions of the two statutes have led the courts to apply precedents developed under the NLRA to decide whether the RLA has been violated. ALPA v. Eastern Airlines, 863 F.2d 891, 903 (D.C. Cir. 1988) (mixed motive rules); Delgado v. Aerovias de Mexico, 148 LRRM 2176, 2182-2183 (S.D. Fla. 1994) (though RLA has no exception for supervisors, NLRA precedent used to decide whether supervisor can sue for retaliatory discharge); Schlang v. Key Airlines, 794 F. Supp. 1493, 1499-1500 (D. Nev. 1992), vacated in other part, 158 F.R.D. 666, 670-671 (1994) (law on interrogation of employees and threatening letters); Machinists v. Varig Brazilian Airlines, 855 F. Supp. 1335, 1358 (E.D.N.Y. 1994), vacated by consent, 889 F. Supp. 90 (1995) (law on employer information to employees about how to leave union); or what remedies should be allowed for RLA violations. Riley v. Empire Airlines, 823 F. Supp. 1016, 1018-1019 (N.D.N.Y. 1993). It is apparent from the foregoing cases that judicial willingness to lean heavily on the NLRA in construing the RLA has not abated following TWA v. IFFA in 1989.
AA points, however, to cases that warn about drawing overly facile analogies with the NLRA in situations where the language or operation of the two statutes is different. AA Mem. 18. Here, AA observes, section 7 of the NLRA gives members the right to engage in some activities that are not expressly protected by the RLA.
In fact, as the Court held in Johnson v. Express One Int'l, 944 F.2d 247 (5th Cir. 1991), sections 7 and 2, Fourth "are congruent" in all respects save one that is irrelevant here -- section 7 allows employees to engage in "other concerted activities," regardless of whether they involve a union, while section 2, Third and Fourth only protect employees' rights to engage in various union-related activities, such as collective bargaining, organizing the union, joining or assisting the organization, or designating union representa tives. This has, indeed, led some courts to hold that some NLRA rights, developed by common law adjudication based on the "other concerted activities" language, are not protected by the RLA. See Beckett v. Atlas Air, 968 F. Supp 814, 822-823 (E.D.N.Y 1997) (section 2, Fourth and section 8(a)(1) have different language, so RLA only protects activities supporting a "labor organization"; under NLRA case law defining that term, there are genuine issues about whether plaintiff's efforts were protected).
But here plaintiffs rest squarely on the right to engage in union-related activities, including activities directed to formulating the policies of the organization and electing its leaders. Third/Fourth protects the right to engage in these activities, and bars an employer from interfering with employee exercise of those rights, Conrad v. Delta Airlines, 494 F.2d 914, 917-918 (7th Cir. 1974) (activity on union council); Trainmen v. Cntral of Ga. Ry., 305 F.2d 605 (5th Cir. 1962) (actions taken as officer); Clift v. United Parcel Service, 133 LRRM 2639, 2641 (W.D. Ky. 1990), just as NLRA's guarantee of the right to join a union entitles members to be an active member or inactive member within the organization, Radio Officers Union v. NLRB, 347 U.S. 17, 40 (1954), to run for office or support candidates within the union or to take positions on intra-union policies. Roadway Express v. NLRB, 831 F.2d 1285 (6th Cir. 1985) (right to urge union reform); Helton v. NLRB, 656 F.2d 883, 887 (D.C. Cir. 1980) (same). Indeed, if such "internal" activities were not protected against employer interference, then AA could fire union dissidents with impunity. We do not understand even AA to say that it can do that.
AA also argues, however, that plaintiffs are asking the Court to carve a "new right" out of the RLA, insofar as they seek protection for their right to engage in union-related communication within the confines of the workplace. This is simply not correct. First of all, as we noted in our opening memorandum, both courts and the NMB have recognized the right of employees to express their support for the union while at work, such as by wearing union insignia, Scott v. American Airlines, 488 F. Supp. 415, 419 (E.D.N.Y. 1980); Adams v. Federal Express, 470 F. Supp. 1356, 1363 (W.D. Tenn. 1979), aff'd on other grounds, 654 F.2d 453 (6th Cir. 1981), or by talking to each other or handing out information. USAir, 17 NMB 377, 422-423 (1990). Many of these cases have relied on principles enunciated by the NLRB, and by the Supreme Court upholding the NLRB in Republic Aviation, and we have argued that the NLRB's further elaboration of Republic Aviation principles -- allowing communication in nonwork areas and nonwork times -- should also be recognized under the RLA by analogy. This is by no means a new principle; indeed, perusal of recent cases before the NMB reveals that other major airlines permit employee communication about the union in nonwork areas and nonwork times; see TWA, 24 NMB 141, 157-158 (1997); United Air Lines, 22 NMB 288, 294-295 (1995). It is AA that it is the rogue here, asserting the right to clamp down on union-related expression in a manner foreign to the RLA context.
But wholly apart from these cases, in many, many cases, the courts have recognized the employees are protected in the right to express their views about an incumbent union and about intra-union issues without differentiating between expression in nonwork areas and nonwork times and elsewhere. E.g., Fennessy v. Southwest Airlines, 91 F.3d 1359 (9th Cir. 1996); Conrad v. Delta Airlines, 494 F.2d 914, 918 (7th Cir. 1974); Roscello v. Southwest Airlines, 726 F.2d 217, 219 (5th Cir. 1984) (employee gave out notices at work). These cases neither say, expressly, that the employees could have been fired had they spoken their minds at the airport, or that expression at the airport was forbidden. The fact is that the cases have not considered that specific factual situation, perhaps because other airlines generally permit such activity in nonwork areas.
Here, AA has directly interfered with union expression by employees; its defense against the obvious charge of interference with union activities is that its property rights allow it to do so, even though the employees have every right to be on the premises because they work there. Plaintiffs urge, in response, that AA's property rights may entitle it to some protection from the otherwise absolute prohibition of the statute against interference with union and collective bargaining activity, but only to the extent that employer's property rights have been held sufficient to authorize bans on such expression under the NLRA. Again, it is AA that seeks to carve out a "new" exception (an exception for communications in the workplace), that has never been recognized by any court in the RLA context, and we urge the Court not to allow it.
AA cites USAir v. National Mediation Board, 711 F. Supp. 285 (E.D. Va. 1989), aff'd mem., 894 F.2d 403 (4th Cir. 1989) (table case), as a case denying the sort of workplace access that plaintiffs seek. AA Mem. 17-18. This case is significant, American argues, for several reasons: that the USAir court cited the union's ability to communicate in other ways (supporting AA's alternate means of expression argument); that it treated "access to the workplace for union activity" as a contractual issue, as AA does here; and that it rejected analogies to precedent under the NLRA. These arguments are simply not correct, and the reasons why they are wrong illuminate why plaintiffs' argument on the merits should be accepted.
In USAir, a union asked that its nonemployee agents be allowed to enter the work place to meet with employees. This case, by contrast, does not involve union access to employees; it involves the right of employees who are lawfully on AA's premises to dis cuss the union among themselves, and AA's rule that they may discuss anything they wish so long as it is not a union issue of which American strongly disapproves. That distinction is key, because as the Supreme Court ruled in Babcock & Wilcox v. NLRB, 351 U.S. 105, 110-114 (1956), a whole different set of rules applies to employee rights in premises where they work, on the one hand, and nonemployee representatives' access to the employees on those premises, on the other. When it is employees who wish to speak, the presumption is that they may do so absent strong proofs from the employer, otherwise the employer "has placed an unreasonable impediment on the exercise of the freedom of communication essential to the employees' right to self-organization." But when it is nonemployees who wish to speak in order to organize the workplace, they must show that they have no alternate means of communication. Accord NLRB v. Magnavox Co., 415 U.S. 322, 326- 327 (1974) ("The place of work is a place uniquely appropriate for [employees'] dissemination of views about the bargaining representative and the various options open to the employees"). Nor did USAir reject analogies to the NLRA; instead, it examined the NLRA decisions and noted that the union there could not meet the standard for non- employee access set forth in the NLRA cases. 711 F. Supp. at 298 n.28.
In summary, then, AA's argument that the RLA is not analogous to the NLRA with respect to protections for employee speech in nonwork areas and nonwork times is without merit. Accordingly, AA cannot defeat plaintiffs' claim that, regardless of evidence of discrimination, AA may not ban their talking about union issues and giving out materials on that subject in nonwork areas and nonwork times.
II. The Court Has Jurisdiction to Enforce RLA Section 2, Third and Fourth After a Union Is Certified Where the Private Mechanisms of Dispute Resolution Are Inadequate to Enforce the Statute's Commands or Where a Dispute Brings Into Question the Freedom of the Employees' Representative from Employer Control; No Showing of "Super-Animus" Is Needed.
The heart of AA's argument, and its only realistic hope of obtaining summary judgment, is that, whatever Section 2, Third and Fourth may require, this Court has jurisdiction to enforce those sections only if plaintiffs can show that AA acted with the ob jective of destroying the union or fundamentally destroying the process of collective bargaining. AA contends that there must be a showing of such "super-animus" before jurisdiction will lie because the APA has been certified as the plaintiffs' collective bargaining representative, and it purports to find such a general requirement for post- certification cases in TWA v. IFFA, 489 U.S. 426, 432-436 (1989). AA Mem. 11-16.
However, as we show in this part of the memorandum, IFFA does not stand for any such general proposition. There is dictum in the Court's opinion suggesting a general requirement in post-certification cases that the grievance procedure be inadequate to the task of enforcing the statute, or that the assumption of employee free choice of represen tatives be undermined. The Court enunciated a standard of super-animus, but applied it only in cases in which the parties have exhausted their negotiations over a major dispute and have begun to employ the weapons of economic self-help (such as a strike or lockout). AA's argument to the contrary is based on a sleight-of-hand, which is clear if we unpack its argument into its component parts, and see exactly where AA goes astray.
A. American's Misleading Argument.
To persuade the Court that TWA v. IFFA requires "super-animus" (specifically, "a fundamental blow to union or employer activity and the collective bargaining process itself") in all post-certification suits under Third/Fourth, AA begins, not with a statement of what TWA v. IFFA was about, but with a lengthy and out-of-context blocked quotation from Part III of the Supreme Court's opinion in that case. According to this part of the Opinion, the 1934 RLA Amendments (of which Section 2, Third and Fourth were a part) were addressed primarily to issues arising before a union was certified to represent employees in collective bargaining, to make more explicit the full freedom of employees to decide for themselves whether and how to be represented in collective bargaining. The reason why these Amendments had that general focus was that the RLA creates a detailed procedural framework to facilitate the voluntary settlement of "major disputes." "The ef fectiveness of those private dispute resolution procedures is subject to the initial assurance that the employees' putative representative is not subject to control by the employer," and that the parties can't come to court to further partisan ends -- that is, the government power should not be added to the scales in favor of one party to force the other to agree to that party's terms. "Thus, we have understood judicial intervention in RLA procedures to be limited to those cases where 'but for the general jurisdiction of the federal courts there would be no remedy to enforce the statutory commands which Congress had written into the [RLA].'" TWA v. IFFA, 489 U.S. at 440-441, quoted in AA Mem. 13-14.
At this point, AA leaves its discussion of IFFA to state that, in a number of pre- IFFA cases, lower courts had developed "[t]he pre-certification / post-certification distinction that TWA v. IFFA adopts," AA Mem. 14, citing cases; it then provides a blocked quotation from a decision from the Eastern District of New York that recites a laundry list for four different situations in which post-IFFA courts had accepted jurisdiction and which, AA seems to suggest, represents a proper statement of the post- IFFA standard. AA Mem. 14-15, quoting Machinists v. Varig Brazilian Airlines, 855 F. Supp. 1335 (E.D.N.Y. 1994). There follows a very selective, but page-long, string citation of other post-IFFA cases. AA Mem. 15.
Next, AA notes that the D.C. Circuit has not addressed the pre/post certification issue in any Third/Fourth cases since IFFA; but it acknowledges that the leading post- certification Third/ Fourth case in this circuit is ALPA v. Eastern Air Lines, 863 F.2d 891 (D.C. Cir. 1988), decided the year before IFFA. As with IFFA itself, AA provides no description of ALPA v. Eastern, contenting itself with the assertion that this case "applied a high standard of anti-union animus for judicial intervention under the RLA." Mem. 16 (emphasis added).
Then, in the key sleight of hand, AA moves from this vague reference to the governing precedent in the D.C. Circuit as requiring a "high" standard of animus to its statement of what it claims is the general standard to govern this case -- after IFFA, "Plaintiffs must show more than just anti-union animus. Plaintiffs must show, in the Supreme Court's own words, 'a fundamental blow to union or employer activity and the collective bargaining process itself.' . . . Or, as several Circuit Courts have articulated the standard, 'a fundamental attack on the collective bargaining process' or 'a direct attempt to destroy the union.' In addition, . . . Plaintiffs must demonstrate that the negotiation and arbitration procedures of the [RLA] cannot effectively address and resolve their dispute." AA Mem. 16 (citations omitted).
In fact, however, AA has misread both TWA v. IFFA and the leading case of ALPA v. Eastern. Eastern did not apply an unusually high standard of animus, and TWA v. IFFA did not require such animus generally for federal court jurisdiction in post-certif ication cases; indeed, AA's theory has been squarely rejected in a case against AA, and is not followed in many circuits.
B. TWA v. IFFA Requires Super-Animus Only in Major Disputes
The flaws in AA's arguments about TWA v. IFFA are apparent simply by reading the Supreme Court' opinion and the partly reversed decision of the Eighth Circuit. That case arose in the aftermath of a strike called by TWA's flight attendants' union, IFFA, after negotiations and the federal-required mediation and cooling off periods failed to pro duce agreement. In response to the strike, TWA continued operations using scabs, inclu ding both existing employees who worked during the strike ("cross-overs"), and new re placements hired during the strike. After more than two months, IFFA offered on behalf of the remaining strikers to return to work, and demanded the discharge of both the new hires and those cross-overs who were junior in seniority to the strikers. TWA refused to displace the scabs, and because only 197 positions remained unfilled, only the most senior workers were called back immediately following the strike; TWA slowly allowed others to return to work as vacancies were created by the departure of the scabs. The union filed suit on a number of grounds, urging that replacement of IFFA members by scabs violated both the CBA and RLA Section 2, Fourth.
The lower courts rejected IFFA's claims based on the contract, but, based on extended analyses of analogous precedent under the NLRA, they accepted in part IFFA's arguments about the system of replacing the strikers. The court of appeals accepted the union's arguments about the CBA, a decision that was affirmed by an equally divided Supreme Court. 485 U.S. 175 (1988). The court of appeals also ruled that once a striker has been permanently replaced by a newly hired worker, the employer may keep the
replacement on the job, and make the striker wait for the scab's departure to return to the striker's only job. 819 F.2d 839, 842-843. It also ruled, however, that just as trainees are not considered permanent replacements under the NLRA, so should they not be considered replacements under the RLA, and thus it was discriminatory to retain trainees in place of strikers. Id. at 845-847. The court also applied the Supreme Court's opinion in NLRB v. Erie Resistor, 373 U.S. 221 (1963), which held that it is "inherently destructive" of strikers's rights for an employer to give scabs "superseniority," elevating their rights over those of returning strikers; according to the court of appeals, Erie Resistor required junior cross-overs to give way to strikers. 819 F.2d at 843-845. Thus, like our argument here, the result rested squarely on analogies between section 8(a)(1) and Third/Fourth.
TWA sought certiorari only on the question of the status of the cross-overs, and the Supreme Court, explaining that "carefully drawn analogies from the federal common labor law developed under the NLRA may be helpful in deciding cases under the RLA," 489 U.S. at 432, began its opinion with a section, Part II, which analyzed the replacement rights of strikers under the NLRA under such cases as Erie Resistor. The Court held that Erie Resistor only governed the seniority that cross-overs and new hires would have vis-a- vis strikers who actually returned to work, and TWA had to respect such seniority rights once that happened. But Erie Resistor did not require displacement of cross-overs, and its holding should not be expanded. Thus, far from rejecting analogies between section 8(a)(1) and Third/Fourth, the Supreme Court was embracing them.
Next, in Part III of its opinion, the Court turned to the union's argument that, regardless of how the NLRA should be construed, the RLA should grant strikers greater rights than the NLRA, and it is in the course of rejecting this argument that the Supreme Court used the language on which AA relies here. First, the court noted that the RLA gives greater leeway for self-help once the parties have exhausted the RLA's "virtually endless" dispute resolution mechanisms before a strike may begin. These avenues of self- help, the court said, "provide the backdrop for the Union's contention that, in this case, we should understand provisions of the RLA to limit 'the full range of whatever peaceful economic power the parties can muster, beyond the limitations even imposed by the NLRA." 489 U.S. at 439-440 (emphasis in original).
Immediately following this introduction come the two paragraphs set out in full in AA's memorandum. It is in the following paragraph, at the end of Part III of the opinion, that the Court employs to "super-animus" language on which AA relies here, but it is the missing context that explains why this language has no bearing whatsoever in this case. The Court noted that TWA and the union had followed the major dispute scheme to an unsuccessful conclusion and that, "at this final stage of a labor dispute regulated by the RLA, the Act is wholly inexplicit as to the scope of allowable self-help." 489 U.S. at 442 (internal quotation marks and citations omitted). This does not mean that all forms of post- negotiation self-help are permissible, but it does "indicate that we should hesitate to imply limitations on all but those forms of self-help that strike a fundamental blow to union or employer activity and the collective bargaining process itself." Id. TWA's crossover policy "fall[s] squarely within the full range of whatever peaceful economic power the parties can muster once they have unsuccessfully exhausted the [RLA]'s procedures for the resolution of a major dispute. [The policy n]either prevented the scheme of the RLA from working [nor] was inherently destructive of union or employer activity." 489 U.S. at 442 (emphasis added; punctuation and citations omitted) (note the use, even in this part of the opinion, of the NLRA terminology "inherently destructive").
It is clear from reading the full context of the isolated phrases on which AA's jurisdictional argument depends that they have nothing to do with this case. Here, the parties had not been released from the RLA's procedures to engage in self-help; plaintiffs complain of employer action that occurred while the RLA's procedural mechanisms were still operating, and when, indeed, the plaintiffs were participating in the internal union process of determining what position to take in collective bargaining (that is, whether to accept AA's latest offer). Thus the Court's reference to the need for "super-animus" simply has no application. Here, too, plaintiffs rely on an analogy to the NLRA to establish that AA violated their rights, as the Supreme Court did in IFFA even in the context of a lawsuit over employer self-help. Finally, as we show in Part III of this brief, here the plaintiffs cannot rely on the RLA's dispute resolution procedures to vindicate their claims under the statute, and indeed the violation is one which calls into question the employees' freedom to choose their own collective bargaining representatives free of employer coercion. Thus, AA's motion based on jurisdiction must fail.
C. Governing D.C. Circuit Precedent Makes Clear That "Super- Animus" Is Not Needed for Federal Jurisdiction over Post- Certification Third/Fourth Suits.
As AA acknowledges in its memorandum, the leading case in the D.C. Circuit on post-certification suits under Third/Fourth is ALPA v. Eastern Air Lines, 863 F.2d 891 (D.C. Cir. 1988). Contrary to AA's argument, Eastern not only does not apply a "high standard of anti-union animus," but it contradicts in several respects AA's jurisdictional arguments in this case. Because, as the foregoing argument makes clear, IFFA does not require super-animus in cases not involving self-help, and because the applicability of Eastern as the governing standard in this circuit has been reaffirmed by the Court of Appeals since IFFA, AA's argument for anti-union super-animus as a requirement before jurisdiction will lie is simply untenable in this circuit.
As with IFFA itself, we begin by describing the factual and procedural context in which Eastern dealt with Third/Fourth. After the CBA's between it and several unions had expired, Eastern had decided to abandon a large number of routes that it had previously served, with the result that almost 2000 union employees would be laid off. The unions sued Eastern on two theories. First, they argued that its actions were contrary to the terms of the existing CBA's, and that, before Eastern could change the status quo, it was required to pursue and complete the procedures for renegotiating its CBA. Second, the unions argued that Eastern was deliberately abandoning routes served by unionized employees, with the intent of having those routes covered by unrepresented employees of Continental Airlines (a different subsidiary of the same corporation), and that this discriminatory action violated Third/Fourth. The district court found that the furloughs were improperly motivated, ALPA v. Eastern Airlines, 703 F. Supp. 962, 980-981 (D.D.C. 1988), and that in any event that Eastern had violated the status quo under the CBA, and could not act before exhausting major dispute procedures. Id. 978-80.
The court of appeals reversed. It first decided that there were arguable grounds in the pre-existing CBA's that could support Eastern's actions, and thus any dispute over these provisions must necessarily be submitted to the grievance and arbitration procedures required by the RLA. 863 F.2d at 895-900. However, the Court treated the unions' dis crimination arguments under Third/Fourth as a "potential independent ground for the dis trict court's injunction," id. 900 (a point that aids our jurisdictional argument based on inadequacy of the grievance procedure, infra 28-30), and therefore the Court devoted the bulk of its opinion, id. at 901-913, to a thorough canvass of the evidence to determine that Eastern would not have taken its actions absent its desperate financial condition, and that its actions would have been the same even had it not been union members who were being laid off. Throughout its opinion, the Court purported to rely on the NLRB's Wright Line rule for determining whether actions involving "mixed motives" were predicated on anti- union animus. The Court cited NLRB precedent right and left, without the slightest hint that the RLA required a higher degree of animus than in NLRA cases.
That AA's reading of the case as requiring a higher standard for animus than the NLRA is farfetched is further shown by the opinions on the petition for rehearing en banc. Judge Mikva, writing for four judges, took the panel to task for applying the NLRB's Wright Line standard to a case involving "large-scale corporate transactions," and to the RLA in any event because the two statutes "are not freely interchangeable." Id. 917. In response, Judge Williams, the author of the panel opinion, stoutly defended the application of Wright Line in RLA cases on the ground that the RLA and the NLRA do not require different findings in such cases. Id. 930-931.
In addition to showing that Eastern allows RLA claims without a showing of "super- animus," the case is also significant because it demonstrates that, in the D.C. Circuit, the mere fact that a claim about certain facts may be presented to the adjustment boards under the grievance procedure, based on the contention that the CBA was violated, does not bar separate judicial consideration of claims under Third/Fourth. Rather, the Court treated the two as separate claims, each of which could potentially support the district court's judgment. Indeed, Judge Edwards wrote separately to argue that the panel had erred in its treatment of the claim based on the expired agreements, suggesting that the adjustment board and the courts could consider different aspects even of that claim. Id. 921-924. In responding to this point, Judges Williams and Silberman emphasized that claims under the expired agreement could still be presented through the grievance procedure. Id. 927, 929.
That Eastern remains the case determining the quantum of animus that is required when it is contended that an employer was motivated to take adverse actions against employees based on their union activity is clear from the very recent decision in May v. Shuttle, 129 F.3d 165 (D.C. Cir. 1997). There the Court affirmed by adopting as its own an opinion by District Judge Johnson, which upheld the furlough of several employees against claims of discrimination under a variety of federal statutes, including RLA Section 2, Fourth. This opinion held that "the leading Section 2, Fourth case in this Circuit is [Eastern]," and that Eastern applies a but-for standard -- the question is whether the employer would have acted as it did in the absence of anti-union animus.
In summary, then, not only IFFA itself but leading and never overruled decision in Eastern belie AA's contention that "super-animus" is needed to support district court jurisdiction in this case.
D. Pre- and Post-IFFA Cases in Other Circuits Also Allow Court Jurisdiction Over Third/Fourth Claims Without a Showing of Super-Animus.
In addition to presenting faulty arguments about what the Supreme Court did in IFFA and what the D.C. Circuit did in Eastern, AA also misstates the law of other circuits as requiring "super-animus" as a condition of court jurisdiction to enforce Third/Fourth.
We begin with a case not cited by AA: Renneissen v. American Airlines, 990 F.2d 918 (7th Cir. 1993), a suit defended by the same law firm as this case. The plaintiffs in Renneissen sued AA claiming that part of the CBA was itself illegal because it disad vantaged them by comparison to other workers in the bargaining unit, in violation of the section 2 Fourth. The district court dismissed on the ground that plaintiffs could not show that the CBA "struck a fundamental blow to union or employer activity and the collective bargaining process itself," citing IFFA -- the precise jurisdictional limit that AA propounds in this case. But the court flatly rejected this jurisdictional defense, explaining that the Supreme Court had offered this requirement of heightened animus "to help courts analyze the merits of self-help actions, not to determine if a court has jurisdiction in the first instance." Id. 922-923. Rather, the Court held, the part of the opinion that formulated a test for jurisdiction was the previous language, to the effect that judicial intervention is limited to cases where there would be no remedy without federal jurisdiction, and consequently the question was whether plaintiffs could bring their RLA claims before the NMB or NRAB. Finding that they could not, the court held that the district court had jurisdiction, although it ruled for AA on the merits on other grounds. Id. 925.
Moreover, several of the cases cited by AA do not at all support its contention that jurisdiction over all post-certification cases require super-animus, but do support our argument that the super-animus rule applies only to cases involving self help. Looking first at its pre-IFFA cases, Machinists v. Alaska Airlines, 813 F.2d 1038 (5th Cir. 1988), did not demand super-animus; in Machinists v. Northwest Airlines, 673 F.2d 700, 709 (3d Cir. 1982), the court concluded that the affidavits had not refuted the employer's asserted claimed basis for disciplinary action, but noted that it did not foreclose an action based on union animus; and in ALPA v. Texas Int'l Airlines, 656 F.2d 16 (2d Cir. 1981), the question was whether the company had tried to evade the bargaining representative and the court said the union should proceed before the NMB. Professional Flight Attendants v. American Airlines, 843 F.2d 209 (5th Cir. 1988), is noteworthy because that court said, at 212, that unions may bargain away members' statutory rights except as in Metropolitan Edison v. NLRB, 450 U.S. 693, 705-706 (1983) (citing Magnavox), which supports our contention, infra, that as under the NLRA, RLA union's are not empowered to waive employees' rights of workplace communication.
AA does not represent its string-citation of post-IFFA cases, Mem. 14-15, as stan ding for the proposition that the super-animus requirement applies beyond the self-help context, and for good reason. For example, Wightman v. Springfield Term. Ry. Co., 100 F.3d 228, 234 (1st Cir. 1996), states the general rule, that judicial intervention is appropriate in "cases in which the aggrieved union has no other remedy 'to enforce the statutory commands which Congress has written into the RLA.'" (quoting IFFA, 489 U.S. at 441). It then provides a short list of situations allowing intervention: "conduct reflecting anti-union animus, an attempt to interfere with employee choice of collective bargaining representative, discrimination, or coercion;" it adds super-animus as an extra case for intervention. Id. Johnson v. Express One Int'l, 944 F.2d 247 (5th Cir. 1991) does not discuss any jurisdictional limitations; it just finds no RLA protection of rights analogous to NLRB v. Weingarten, 420 U.S. 251 (1975), because they rest on the language "other concerted activity." Moreover, in several post-IFFA cases ignored by AA, courts have entertained suits or counter-claims under Third/Fourth without making the slightest reference to whether "super-animus" was present. E.g., Virgin Atlantic Airways v. NMB, 956 F.2d 1245, 1252-1253 (2d Cir. 1992) (certified union's counterclaim against employer for firing strikers and soliciting anti-union petitions); Barthelemy v. ALPA, 897 F.2d 999, 1014-1017 (9th Cir. 1990) (suit against union and employer over agreement that allegedly gave employer dominance over union; court relies heavily on NLRA precedent to decide merits).
Indeed, the blocked quotation from Machinists v. Varig Brazilian Airlines, 855 F. Supp. 1335 (E.D.N.Y. 1994), which AA sets forth in its memorandum, identified five separate situations, some of which apply to this case, in which Third/Fourth suits could be pursued post-certification:
-- "the employer's conduct has been motivated by anti-union animus";
-- "an attempt to interfere with its employees' choice of their collective bargaining representatives";
-- employer's conduct "constitutes 'discrimination or coercion' against that representative";
-- employer's conduct "involves acts of intimidation [which] cannot be remedies by administrative means"; or
-- "employer engaged in 'a fundamental attack on the collective bargaining process', or 'a direct attempt to destroy a union."
AA Mem. 14, quoting Varig, 855 F. Supp. at 1357-1358 (E.D.N.Y. 1994) (note the similar list in Wightman, supra).
In Varig itself, the court decided the merits of the case, based entirely on NLRB precedent that what the employer did (i.e., provide employees with information about how to resign from the union) was neither interference in violation of section 8(a)(1), nor discrimination in violation of section 8(a)(3).
Because AA apparently approves Varig's broad-ranging list of justifications for court intervention under Third/Fourth, it is hard to see how Varig justifies AA's contention that "super-animus" is always required to establish jurisdiction, or how AA can contend that there is no jurisdiction over this case. Here, plaintiffs allege anti-union animus, interference with their choice of bargaining representative, discrimination, and coercion; thus, under standards apparently approved by AA, there is jurisdiction here.
III. This Case Meets the IFFA Standards for Federal Jurisdiction of Post- Certification Third/Fourth Claims.
The claims advanced by plaintiffs in this case meet the standards set forth in TWA v. IFFA for federal jurisdiction over claims under Third/Fourth, both (1) because the grievance procedure is not adequate to resolve plaintiffs statutory claims against AA in this case, and (2) because the issue in this case goes to employees' freedom of choice in selecting their representative and directing its course in collective bargaining.
A. The Inadequacy of the Grievance Procedure.
The grievance and arbitration procedure does not provide an adequate means for plaintiffs to secure protection of their statutory rights, for several reasons. First, and perhaps most important, there is no evidence that plaintiffs will even be able to secure a hearing on their statutory claims in the grievance procedure. In this regard, AA argues that disputes under the RLA are either major (in which case they are to be resolved by negotiation) or minor (in which case they are to be subject to grievance and arbitration); and it repeatedly asserts in its memorandum that "this dispute" is within the jurisdiction of the grievance procedure and the adjustment board. But by "this dispute" it is quite apparent that AA has reference only to possible claims by plaintiffs that AA may have violated past practice or agreements between AA and the APA; AA never once suggests that plaintiffs can bring their claims under Third/Fourth to the arbitrator.
This seemingly fine distinction is crucial because precedent makes clear that claims that an employer violated independent statutory requirements are not minor disputes, and therefore not within the exclusive jurisdiction of the grievance and arbitration procedures mandated by the RLA. That was the Supreme Court's holding in Hawaiian Airlines v. Norris, 114 S. Ct. 2239 (1994), where the question was whether a state law claim for retaliatory discharge in violation of the workers compensation statute was a minor dispute that had to be arbitrated, and thus whether the state law action was preempted by the RLA. The Court said no, because the RLA defines minor disputes as "disputes growing out of grievances or out of the interpretation or application of CBA's," and grievances, in labor law parlance, is simply a way of referring to a claim that arises out of a CBA. Id. 2244. Not only is that how the term has been applied to NLRA employers, but it has been under stood this was in the RLA context as well, id. and "[o]ur case law confirms that." Id. 2245. See also Atchison, Topeka & S.F. Ry. v. Buell, 480 U.S. 557 (1987).
Moreover, the fact that AA asserts that the CBA gave it a right to limit distribution and solicitation does not require that the underlying statutory claim itself be grieved and arbitrated. The requirement of arbitration, and thus minor dispute status, depends on the source of law that the plaintiff invokes as a basis for judicial relief. If that source of law is the CBA, then the dispute is minor and must be taken to arbitration. If it is an independent statutory obligation, then the dispute may be pursued under the statute's own judicial enforcement procedures. Id. 2246. The obligation to arbitrate includes situations where the claim is that the parties have created a norm, but omitted it from the written agreement (the so-called "omitted case"). Id. 2250. But the mere fact that the employer contends that its action may have been justified by some provision of the CBA is not sufficient to sweep it within the scope of mandatory arbitration. Id. 2250-2251. Accord, Anderson v. American Airlines, 2 F.3d 590, 595-596 (5th Cir. 1993); Davies v. American Airlines, 971 F.2d 463, 465-466 (10th Cir. 1992).
Nor do the contractual provisions provided with the affidavit of AA official John Russell sweep any broader category of disputes into the grievance and arbitration proce dure than the RLA does. Attachments 3 and 4 show that the parties have given jurisdiction to their Grievance Review Board, and to the System Board of Adjustment, only to decide "disputes . . . growing out of grievances, or out of interpretation or application of any of the terms of this Agreement" -- i.e., the language of the CBA tracks the language of the RLA itself. There no reason to believe that the CBA obligates AA to arbitrate any claims other than those that the RLA has already commanded.
Instead of simply stating that it is willing to submit to an arbitrator's jurisdiction to decide plaintiffs' statutory claims, AA has proposed that plaintiffs may have some claims under the CBA, relating to their ability to communicate within the workplace, which they could submit to arbitration. But it has never been the law that employees who have potential claims under both the CBA and a statute are required to forego their statutory claims, and the tribunal established by law for the enforcement of those statutory claims, and pursue contractual claims instead. That employees may pursue such "parallel" statutory claims regardless of whether or not they seek arbitration was made clear in the RLA context by Hawaiian Airlines, 114 S. Ct. at 2248-2249, see also Brady v. TWA, 401 F.2d 87, 95-96 (3d Cir. 1968), and in the NLRA context by Lingle v. Norge, 486 U.S. 399 (1988). And in this circuit, ALPA v. Eastern states that, even though the unions there had an arguable basis for grieving based on past practice, their claims under Third/Fourth were a potential independent basis for sustaining the district court's injunction. 863 F.2d at 900. Accordingly, particularly in this Circuit, the mere possibility that contractual claims might govern the same facts as statutory claims does not bar the prosecution of the statutory claims in federal court.
There is at least one claim by plaintiffs which, according to AA's own summary judgment arguments, cannot possibly be submitted to the contractual grievance procedure. Thus, AA insists that, in negotiations for the current CBA, the APA implicitly agreed that the APA's official bulletin boards would be the location where union-related messages could be placed, and that it would assume responsibility for deciding which messages could be posted there. Russell Affidavit, ¶ 5. As made clear in our response to AA's SMF, we do not believe that AA's evidence establishes this fact (because it is not sworn solely on personal knowledge), and it is contrary to our information; and as we discuss below, we do not believe that statutory rights to communicate in the workplace are waivable. But the case law makes clear that, when employee challenging the lawfulness or validity of a CBA or one of its provisions, federal jurisdiction is the only adequate remedy. Renneissen v. American Airlines, 990 F.2d 918, 923 (7th Cir. 1993); Goclowski v. Penn Central Transp. Co., 571 F.2d 747, 754-757 (3d Cir. 1977).
There are two additional reasons why the RLA's grievance and arbitration proce dures would not provide an adequate alternate mechanism for enforcing plaintiffs' statutory claims, even if such claims were subject to arbitration. Thus, by the very nature of cases such as this one, claims of the right to communicate with other employees about union affairs tend to arise in the context where individuals are challenging some policy, or even the perpetuation in office, of the individual officers of the union who are, in fact, the employees' bargaining representatives and who control the grievance procedure.
By and large, it is not the incumbent union officers who have the greatest need to exercise their statutory rights to campaign because, as Professor Summers has observed, they tend to control the union's official channels of communication. Summers, Democracy in a One-Party State: Perspectives from Landrum-Griffin, 43 Md. L. Rev. 93, 99, 118 (1984); see also Brown v. Lowen, 857 F.2d 216, 217-218 (4th Cir. 1988), opin. adopted en banc, 889 F.2d 58 (1989), aff'd, 498 U.S. 466 (1991). That was certainly true here, as plaintiffs' affidavits establish. And, as a practical matter, it is most likely that an employer is going to clamp down on campaigning against incumbents in the workplace when the incumbents are politically aligned in interest with the employer -- at least by comparison with the anticipated views of the insurgents. This natural tendency is con firmed by the evidence here -- it is undisputed that the only persons ejected from opera tions were individuals who opposed ratification of the CBA, while both the employer and union members who favored ratification were actively campaigning in the workplace. Plaintiffs' Statement of Material Fact Not in Dispute ("PSMF") 70, and evidence cited.
We acknowledge that the union now supports plaintiffs' legal position about the meaning of the RLA, and we are grateful for the support. But the fact remains that when the chips were down, and AA was suppressing the viewpoint of those opposed to ratifica tion, APA was willing to write a letter of protest, but did nothing to press the grievance for immediate resolution. Indeed, when plaintiffs sought to enjoin implementation of the CBA, APA actively opposed their request, and AA apparently takes the position, Mem. 32-33, that if union leaders fail to use their union clout to encourage ratification, they can be sued under the RLA. And in the next controversy, when the current incumbents are under attack, or when a CBA that they have negotiated is drawn into question, we mean no disrespect in expressing uncertainty about whether they will be any more willing to press for an immediate grievance resolution than the union leaders who were in office at the time when this case arose. In such circumstances, employees need the certainty of access to an independent tribunal to enforce their statutory rights under the RLA.
Related to the foregoing point is the problem that the grievance procedure is hopelessly backlogged; it is not unheard of for grievances to wait five years or more to be resolved through arbitration. We submit with this opposition a listing of grievances that were pending last spring, several of which date from the early part of this decade. Developments since that time do not inspire our confidence. For example, AA's affiant, Russell, acknowledges that plaintiff Cutter filed a grievance over the denial of the right to campaign in April 1997; when the grievance was denied, he appealed on July 22, 1997. Other such grievances have been denied, but it is now 1998 and no further progress is reported on any of them. Russell Affidavit, ¶¶ 17-22.
To be sure, AA makes an issue of the fact that the APA has taken the position that the grievances are stayed; yet it remains clear that AA, like the APA, has taken no action whatsoever to press these grievances to further hearing, not to speak of to arbitration. Given the union's broad discretion to decide when or whether to pursue a particular grievance, this is hardly a matter within the control of the individual plaintiffs. Regardless of whether it is the company or the union that is the cause of all these delays, regardless of which of the two is playing games with the other, these facts only serve to place in focus the inadequacy of the grievance procedure as a mechanism for resolving the statutory claims of individual pilots, such as the plaintiffs, when that procedure is controlled by the union and by the company.
B. This Case Draws Into Question the Employees' Freedom to Choose Their Collective Bargaining Representative and to Keep It Free of Employer Control.
In addition to the inadequacy of the grievance procedure, plaintiffs rely here on a second basis for federal jurisdiction over Third/Fourth Claims that the Supreme Court recognized in TWA v. IFFA. The Court noted that the "effectiveness of the RLA's private dispute resolution procedures depends on the initial assurance that the employees' putative representative is not subject to control by the employer." 489 U.S. at 442. Consequently, courts have recognized that judicial enforcement of Third/Fourth claims is appropriate when the claim is over alleged interference with "its employees' choice of their collective bargaining representatives." Machinists v. Varig Brazilian Airlines, 855 F. Supp. 1335, 1357 (E.D.N.Y. 1