Cwa-Ibt Passenger Service Employee Association v. American Airlines, Inc.

MOTION for Summary Judgment

D.D.C.January 25, 2017

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CWA-IBT PASSENGER SERVICE EMPLOYEE ASSOCIATION, 501 Third Street, NW Washington, DC 20001 Plaintiff v. AMERICAN AIRLINES, INC., 4255 Amon Carter Blvd Fort Worth, TX 76155 Defendant Civil Action No.: 1:16-cv-01630 (RDM) MOTION FOR SUMMARY JUDGMENT PlaintiffCWA-IBT PASSENGER SERVICE EMPLOYEE ASSOCIATION ("the Association"), by and through its attorneys and pursuant to Fed. R. Civ. P. 56, hereby moves for summary judgment on all counts of the Complaint, as there is no genuine issue of material fact and Plaintiff Association is entitled to judgment as a matter of law. The Association's motion is supported by the accompanying Memorandum of Points and Authorities and Statement of Material Facts Not In Dispute supported by the Record mutually agreed upon with Defendant AMERICAN AIRLINES, INC., as well as any oral argument presented before this Court. Case 1:16-cv-01630-RDM Document 18 Filed 01/25/17 Page 1 of 2 Dated: January 25, 201 7 Respectfully submitted, s/ Deirdre Hamilton Deirdre Hamilton (DC bar number 472334) Nicolas M. Manicone (DC bar number 461172) International Brotherhood of Teamsters 25 Louisiana A venue, NW Washington, DC 20001 Ph: (202) 624-7470 Fax: (202) 624-6884 nmanicone@teamster.org dhamilton@teamster.org Case 1:16-cv-01630-RDM Document 18 Filed 01/25/17 Page 2 of 2 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CWA-IBT PASSENGER SERVICE EMPLOYEE ASSOCIATION, 501 Third Street, NW Washington, DC 20001 Plaintiff v. AMERICAN AIRLINES, INC., 4255 Amon Carter Blvd Fort Worth, TX 76155 Defendant Civil Action No.: 1 :16-cv-01630 (RDM) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Deirdre Hamilton (DC bar number 472334) Nicolas M. Manicone (DC bar number 461172) International Brotherhood of Teamsters 25 Louisiana A venue, NW Washington, DC 20001 Ph: (202) 624-7470 Fax: (202) 624-6884 nmanicone@teamster.org dhamilton@teamster.org Case 1:16-cv-01630-RDM Document 18-1 Filed 01/25/17 Page 1 of 41 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CWA-IBT PASSENGER SERVICE EMPLOYEE ASSOCIATION, 501 Third Street, NW Washington, DC 20001 Plaintiff v. AMERICAN AIRLINES, INC., 4255 Amon Carter Blvd Fort Worth, TX 76155 Defendant Civil Action No.: 1:16-cv-01630 (RDM) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT TABLE OF CONTENTS TABLE OF AUTHORITIES ....................................................................................................... 4 INTRODUCTION ......................................................................................................................... 7 SUMMARY OF RELEVANT FACTS AND PROCEDURAL HISTORY ............................. 9 I. The History of Union Representation of Passenger Service Employees Now Employed By American ........................................................................................................................ 10 II. The American Passenger Service Employees Craft or Class .......................................... 11 III. American's Grievance and the Subsequent Arbitration ................................................. 14 ARGUMENT ............................................................................................................................... 17 I. The System Board Exceeded Its Jurisdiction by Determining Matters Reserved to the Sole Discretion of the National Mediation Board ............................................................. 18 2 Case 1:16-cv-01630-RDM Document 18-1 Filed 01/25/17 Page 2 of 41 A. Questions Related to Representation are for the exclusive jurisdiction of the NMB ....... 18 B. The System Board Went Beyond Interpreting the JCBA, to Trespass into Representation Questions Reserved for the NMB ............................................................ 22 II. The Award Should Be Overturned Because it Does Not Comply with the Railway Labor Act . ............................................................................................................................ 25 A. In some cases, it may be appropriate for the courts to look to the NLRA for assistance in construing the RLA ........................................................................................................... 27 B. The System Board erred in finding the Association waived the right to seek accretion because there was no express waiver. ............................................................................... 29 C. Alternatively, in This area the RLA is Not Analogous to the NLRA, and there Should Be No Waiver At All ........................................................................................................ 35 CONCLUSION ........................................................................................................................... 40 3 Case 1:16-cv-01630-RDM Document 18-1 Filed 01/25/17 Page 3 of 41 TABLE OF AUTHORITIES Federal Cases Air Line Employee Assn. v. Republic Airlines, Inc., 798 F.2d 967 (7th Cir. 1986} (per curiam) _______ 20 Air Line Pilots Ass'n v. Trans World Airlines, Inc., 729 F.Supp. 888 (D.D.C. 1989} ____________ 29 Airline Pilots Ass'n, lnt'I v. Pan Am. World Airways, Inc., 765 F.2d 377 (2nd. Cir. 1985} _________ 38 Allen v. CSX Transp., 325 F.3d 768, (6th Cir. 2003) ____________________ 19 American Hosp. Ass'n v. NLRB, 499 U.S. 606, 609 (1991) __________________ 30, 39 Arnold v. Air Midwest, lnc.,100 F.3d 857 (10th Cir. 1996) ___________________ 28 Association of Flight Attendants v. USAir, Inc., 24 F.3d 1432 (D.C. Cir. 1994) _____________ 18 Bhd. of R.R. Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 385 n.20 (1969) ___________ 31 Boire v. International Brotherhood of Teamsters, 479 F.2d 778 (5th Cir. 1973) ____________ 21 Burlington Northern R. Co. v. Maintenance of Way Employees, 481 U.S. 429 (1987) __________ 29 Burlington Northern v. Maintenance of Way Employees, 481 U.S. at 443 ______________ 29 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ______________________ 17, 39 Diamond v. Terminal Ry., 421 F.2d 228 (5th Cir. 1970) ____________________ 17 Fay v. Douds, 172 F.2d 720, 724 (2nd Cir. 1949) ______________________ 37 Flight Engineers v. National Mediation Board, 294 F.2d 905, (D.C.Cir. 1961) cert. denied, 368 U.S. 956 (1962) _19 Glover v. St. Louis-Santa Fe Railway, 393 U.S. 324 {1969) 28 Gvozdenovic v. United Airlines, Inc., 933 F.2d 1100 {2nd Cir.) cert. denied 502 U.S. 910 (1991} 28 International Ass'n of Machinists and Aerospace Workers v. Transportes Aereos Mercantiles Pan Americandos, S.A., 924 F.2d 1005 (11th Cir. 1991) 28 International Brotherhood ofTeamsters v. Texas lnt'I Airlines, 717 F.2d 157 (5th Cir. 1983) 21 Kaschak v. Consolidated Rail Corp., 707 F.2d 902 (6th Cir. 1983) _______________ 27, 31 Local No. 1547, Intern. Broth. of Elec. Workers, AFL-CIO v. Local No. 959, Intern. Broth. of Teamsters, Chauffeurs, 507 F.2d 872, 877 (9th Cir. 1974) 30 Mandarin Oriental Mgmt., (USA) Inc. v. New York Hotel & Motel Trades Council, AFL-CIO, 2014 WL 345211, * 7 (S.D.N.Y. Jan 31, 2014) 33, 34 4 Case 1:16-cv-01630-RDM Document 18-1 Filed 01/25/17 Page 4 of 41 McCall v. Chesapeake & Ohio Ry. Co., 844 F.2d 294 (6th Cir. 1988) 27 McDonnell Douglas v. NLRB, 59 F.3d 230, 235 (D.C. Cir. 1995) 22 Merritt v. International Ass'n of Machinists and Aerospace Workers, 2008 WL 5784439 *15 (E.D. Michigan, September 22, 2008) 25 National Mediation Board v. Assn. for the Benefit of Non-Contract Employees, 380 U.S. 650 (1965) 18 NLRB v. Magna Corp., 734 F.2d 1057 (1984) 22 Peabody Coal v. NLRB, 709 F.2d 567, 568 (9th Cir. 1983) 33, 34 Pilot Freight Carriers, Inc. v. International Brotherhood ofTeamsters,659 F.2d 1252 (4th Cir. 1981) 21 Sheraton-Kauai Corp. v. NLRB, 429 F.2d 1352 (9th Cir. 1970) 22 Switchmen's Union of N. America v. National Mediation Board, 320 U.S. 297 (1943) 19, 39 Teamsters v. Brotherhood of Railway Clerks, 402 F.21d 196 (D.C. Cir. 1968) 18 Teamsters v. Pan American World Airways, Inc., 716 F.Supp. 726 (E.D.N.Y. 1989) 29 Trainman v. Jacksonville Terminal, 394 U.S. 369 (1969) 27, 28 Trans World Airlines, Inc. v. lndep. Fed'n of Flight Attendants, 809 F.2d 483, 484 (8th Cir. 1987) 38 Union of N. America v. National Mediation Board, 320 U.S. 297 (1943). 19 Union Pac. R.R. v. Sheehan, 439 U.S. 89 (1978) 17 United Transp. Union v. Chicago & Illinois Midland Ry. Co., 731F.Supp.1336 (C.D. Ill. 1990) 28 Vaca v. Sipes, 386 U.S. 171 (1967) 27 Western Airlines, Inc. v. Teamsters, 480 U.S. 1301 (1987) 20 Wood v. Houston Belt & Terminal Ry., 958 F.2d 95, 97 (5th Cir. 1992) 28 Statutes 29 u.s.c. § 157 30 45 U.S.C. § 151, Sixth 9 45 u.s.c. § 156 (2012) 37 45 U.S.C. §§ 151, First 9 45 U.S.C. §152, Ninth 18 5 Case 1:16-cv-01630-RDM Document 18-1 Filed 01/25/17 Page 5 of 41 45 U.S.C. §153, First (p)-(q) ___________________________ 18 Agency Decisions Advanced Architectural Metals, 347 NLRB No. 111 (2006) __________________ 22 American Eagle, 28 NMB 371, 381 (2001) 39 Briggs Indiana Corp., 63 NLRB 1270 (1945) 31, 36 Certco Distribution Centers, 346 NLRB 1214 (2006) 22 Cessna Aircraft Co., 123 NLRB 855, 856 (1959) 31, 33, 34, 35 Delta Air Lines Global Svcs., 25 NMB 456,460 (2001) 39 Eastern Air Lines, 12 NMB 34 (1984) 40 Galveston Wharves, 4 NMB 200 {1962) 40 Hexton Furniture Co., 111NLRB342 {1955) 37 LSG Lufthansa Servs., 25 NMB 96 (1997) 39 Marion Power Shovel, Inc., 230 NLRB 576 (1977) 22 Southwest Airlines, 42 NMB at 112 40 Springfield Terrace LTD, 355 NLRB 937, 937 (2010) 32, 34 Varig Airlines, 10 NMB 223 (1983) 39 6 Case 1:16-cv-01630-RDM Document 18-1 Filed 01/25/17 Page 6 of 41 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CWA-IBT PASSENGER SERVICE EMPLOYEE ASSOCIATION, 501 Third Street, NW Washington, DC 20001 Plaintiff v. AMERICAN AIRLINES, INC., 4255 Amon Carter Blvd Fort Worth, TX 76155 Defendant Civil Action No.: 1:16-cv-01630 (RDM) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Plaintiff CWA-IBT PASSENGER SERVICE EMPLOYEE ASSOCIATION ("the Association") has moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. The Association hereby submits this memorandum of law in support of its assertion that on the basis of the indisputable facts, judgment should be entered as a matter of law in the Association's favor on all Counts. INTRODUCTION This matter comes before the Court on cross motions for summary judgment brought by the Association, a labor union, and American Airlines, a common carrier and employer of the Association's members. By this motion, the Association asks the Court to vacate an arbitration award which intrudes upon the National Mediation Board's (NMB) exclusive jurisdiction over representation questions; American seeks its enforcement. 7 Case 1:16-cv-01630-RDM Document 18-1 Filed 01/25/17 Page 7 of 41 The Association and American are parties to a collective bargaining agreement that establishes pay and working conditions for Passenger Service Employees working across the United States at airports, helping passengers board flights, check bags, and change travel arrangements, and in reservations centers and home offices, booking flights for customers. The Agreement establishes some jobs as to be performed exclusively by Association-represented employees, and other kinds of work as non-exclusive, such that they can be performed by American employees or contractors, at American's option. The NMB certified the Association as the exclusive representative of American Passenger Service Employees, and defined the "craft or class" of represented employees by reference to their job titles and duties. When it did so, it did not include employees in three job classifications. During negotiation of the collective bargaining agreement, the Association proposed that those employees be included in the bargaining unit and their work by covered by the collective bargaining agreement, but eventually dropped that proposal. Employees in those classifications signed cards asking the NMB to include them in the Association-represented craft or class, and the Association informed the carrier of its plan to petition the NMB for an "accretion" of those employees into the Passenger Service craft. American objected to this inclusion and sought to arbitrate the question of whether the Association agreed to exclude these employees from accretion into the craft. An arbitration panel found in its Opinion and Award that the collective bargaining agreement between the parties, which referred to these employees' work as potentially subject to being contracted out, meant that the Association waived the employees' right to seek accretion and ordered the Association to withdraw the accretion petition it had filed on the employees' behalf. 8 Case 1:16-cv-01630-RDM Document 18-1 Filed 01/25/17 Page 8 of 41 This motion seeks to vacate that erroneous decision. The arbitration panel which considered this matter committed two errors that made its decision unenforceable as a matter of law. First, the Opinion and Award concluded that accretion was inappropriate. Such a decision -like all representation questions - is exclusively the domain of the National Mediation Board, as a host of cases demonstrate. The RLA deprives both courts and arbitrators of jurisdiction over such questions. Thus, the Opinion and Award exceeds the authority granted to the arbitration panel and in doing so violates the RLA. Second, the Opinion and Award found that the Association "tacitly" (but not expressly) waived these employees' rights under the RLA to seek representation. This conclusion itself violates the RLA, because waiver of such a right must either be explicit, which the alleged waiver indisputably was not, or, in the alternative, because the Association has no legal authority to waive fundamental RLA rights to organize on behalf of employees it does not yet represent. SUMMARY OF RELEVANT FACTS and PROCEDURAL HISTORY The CWA-IBT Passenger Service Employee Association ("the Association") is a labor organization and the collective bargaining representative within the meaning of Section 1, Sixth of the RLA, 45 U.S.C. § 151, Sixth. See STATEMENT OF MATERIAL FACTS NOT IN DISPUTE ("SMF") ii 1. The Association is the certified exclusive collective bargaining representative of the Passenger Service Employees craft or class at American. See SMF ii 2. American Airlines, Inc. ("American") is a Delaware corporation, headquartered in Fort Worth, Texas, that provides scheduled passenger air transportation throughout and outside the United States. See SMF ii 3. American is a "carrier" within the meaning of Section 1, First of the RLA, 45 U.S.C. §§ 151, First and 181. See SMF ii 4. 9 Case 1:16-cv-01630-RDM Document 18-1 Filed 01/25/17 Page 9 of 41 I. The History of Union Representation of Passenger Service Employees Now Employed By American. Throughout its history, American has been involved in mergers with numerous airlines. See SMF if 5. Most recently, on December 9, 2013, American completed a merger transaction involving US Airways, Inc. ("US Airways" also referred to as "US Air"). See SMF if 6. Prior to its merger with American, US Airways itself was involved in a merger with America West Airlines, Inc. ("America West") in 2005. See SMF if 7. The Communications Workers of America ("CW A") represented the US Airways Passenger Service employees beginning in 1999 when the NMB certified CW A as the bargaining representative. See SMF iii! 8-9. The International Brotherhood of Teamsters ("IBT") represented the America West Passenger Service employees prior to the 2005 merger of America West and US Airways. See SMF if 10. In 2005, CWA and IBT formed the Airline Customer Service Employee Association (subsequently renamed the CWA-IBT Passenger Service Employee Association) ("the Association") to represent passenger service employees at the merged carrier, which continued to be called US Airways. See SMF if 11. At the time of the merger, the Association negotiated with the merged US Airways a Transition Agreement amending the CWA- US Airways 2005 CBA to include former America West employees. See SMF if 12. Following the American and US Airways merger, a representation election supervised by the NMB was held among the Passenger Service employees of the merged American who elected to be represented by the Association. See SMF iii! 14-15. The NMB certified the Association as the representative of the post-merger American Passenger Service Employees on September 17, 2014. Id. 10 Case 1:16-cv-01630-RDM Document 18-1 Filed 01/25/17 Page 10 of 41 The Association and American negotiated a Joint Collective Bargaining Agreement ("JCBA") from December 2014 until September 2015, using the 2005 CBA as a baseline. See SMF if 16. The JCBA was ratified by the membership and became effective December 1, 2015. See SMF if 17. II. The American Passenger Service Employees Craft or Class. Examples of Passenger Service employees at American include reservation sales agents, gate agents, ticketing agents, and customer assistance representative. See SMF if 18. The employee groups and classifications at issue here have not been recognized by the NMB as part of the American Passenger Service craft or class: the Central Baggage Resolution Office ("CBRO") Representatives (approximately 180 employees, most of whom work in Tempe, Arizona, and approximately thirty-two of whom work in the Dallas-Fort Worth, Texas area), Customer Relations ("CR") Representatives (approximately 330, roughly 200 of whom work in Tempe, Arizona, and 100 of whom work in Winston-Salem, North Carolina), and System Support Center ("SSC") Representatives (approximately 70, who work in Phoenix, Arizona). See SMF if 19. The CBRO, CR, and SSC employees had varying histories of union representation. At arbitration, Kimberly Barboro, a Business Agent for Teamsters Local 104 testified that at the time of the American West and US Airways merger, CBRO employees were part of the bargaining unit at America West and "there was a Baggage Call Center at U.S. Air prior to the merger which was accreted in 1999." See SMF iii! 20-21. Barboro testified that under the terms of the interim transition agreement signed at the time of the US Air/ America West merger, the parties agreed that CBRO employees would not be a part of the Passenger Service Class and 11 Case 1:16-cv-01630-RDM Document 18-1 Filed 01/25/17 Page 11 of 41 their functions were subsequently outsourced: "The Parties agree that employees in ... Central Baggage Resolution Office(s) ... are not part of the passenger service craft or class and will not be covered under the transition to the US Airways Collective Bargaining Agreement." See SMF iiii 22-23. Sean Beutel Director of Customer Relations for American testified that prior to the US Airways-American merger, CRs employed by American and US Airways were not part of the bargaining unit. See SMF ii 24. Beutel testified that prior to the US Airways-American merger, US Airways employed CBROs and "they were not considered to be part of the bargaining unit either before or after the merger with American." See SMF ii 25. Beutel testified that prior to the US Airways-American merger, US Airways, but not American, employed SSC Representatives who were not considered to be part of the bargaining unit. See SMF ii 26. Beginning in 2011, CBRO, CR, and SSC employees began approaching the Association expressing interest in joining the bargaining unit. See SMF ii 27. The Association distributed accretion cards to interested employees. See SMF ii 28. On November 4, 2015, Sean Beutel sent an email to Customer Relations, SSC and Central Baggage teams noting that the "CWA-IBT is asking employees to sign cards authorizing the union to represent them," and advising those employees how the process "would play out." See SMF ii 29. On January 21, 2016, Barboro emailed American's managing director of Labor Relations Taylor Vaughn: In the spirit of transparency, I wanted to give you a heads up on employees signing accretion cards on the SSC, CBRO and Cust (sic) Relations areas. Employees have been reaching out to us for some time and they have finally come to me to get the process going. I will be out at Rio Salado next Week in the break room. See SMF ii 30. On May 31, 2016, the Association filed an accretion application with the NMB covering the CBRO and SSC Representatives. See SMF ii 31. 12 Case 1:16-cv-01630-RDM Document 18-1 Filed 01/25/17 Page 12 of 41 A recent decision by the NMB, Southwest Airlines, 42 NMB 110 (2015), involving a case with similar facts is instructive as to the NMB' s practices and policies in cases where a labor organization has filed an accretion application. There, the International Association of Machinists ("IAM") represented the employees of the Passenger Service Employees craft or class at Southwest Airlines ("SWA"). Id. at 112. Pursuant to earlier NMB certifications, the Passenger Service Employees craft or class consisted of Customer Service Agents ("CSAs") and Customer Representatives ("CRs"). Id. In 1992 another organization filed a representation application seeking to represent the customer service agents, arguing that the CSAs should be in a different craft or class from the CRs, but the NMB declined to "fragment" the craft or class as proposed. Id. Due to technological changes, SW A established a Source of Support Department in 1994, employing workers known as "SOS Reps." Id. at 113. The instant dispute involved an application filed by the IAM asserting that the SOS Reps were part of the Passenger Service Employees craft or class. Id. at 110. The case was assigned an NMB Investigator and both parties submitted position statements. Id. at 111. SW A argued that the SOS Reps were "more similar to Help Desk employees in an information technology department who would be appropriately in an Office Clerical Employees craft or class." Id. at 116. In making the craft or class determination, the NMB looked to a list of typical duties of passenger service employees listed in the case United Airlines, 6 NMB 180 (1977) and considered the effect upon those duties of subsequent technological changes. Southwest Airlines, 42 NMB at 114-116. The NMB concluded that "SOS Reps share a work-related community of interest with CSAs and CRs" and were part of the craft or class. Id. at 116. The NMB further found that IAM supported its application with the requisite 5 0 percent showing of interest (by means of authorization cards) and concluded that accretion was appropriate. Id. at 111, 11 7. 13 Case 1:16-cv-01630-RDM Document 18-1 Filed 01/25/17 Page 13 of 41 III. American's Grievance and the Subsequent Arbitration The Company filed a grievance objecting to the Association's accretion efforts on February 15, 2016, in which the Company asserted that the Association was violating the JCBA by soliciting "authorization cards for the stated goal of seeking an order from the NMB accreting these employees into the Passenger Service Group." See SMF if 32. The Company sought "a declaratory judgment from the Board that the Association is violating the parties' agreement and also a cease and desist order prohibiting the Association from seeking to accrete these employees until and unless the CBA is changed on this issue pursuant to Section 6 of the RLA." See SMF if 33. A hearing on the matter was held before the parties' System Board of Adjustment chaired by Arbitrator Stanley H. Sergent on May 11 and 12, 2016. See SMF if 3 4. The parties stipulated to the following statement of the issue: "Whether the Association is in violation of the joint Collective Bargaining Agreement by seeking to accrete the CBRO, SSC, and/or CR Representatives into the Passenger Service employee craft or class? If so, what shall be the remedy?" See SMF if 35. The Association contended that the Company's grievance was not arbitrable because the question before the panel was a representation matter within the NMB' s exclusive jurisdiction, an argument the System Board rejected. See SMF if 36. Evidence and testimony at the arbitration addressed the negotiation of the JCBA Article 4 "Groups/ Classifications." See SMF if 37. The parties generally agreed that the Association proposed that American recognize CBRO, CR, and SSC employees as part of the bargaining unit work and that their work would be protected as exclusive to the bargaining unit. See SMF iii! 3 8- 47. The parties also generally agreed that the Association eventually dropped this proposal 14 Case 1:16-cv-01630-RDM Document 18-1 Filed 01/25/17 Page 14 of 41 during 'horse trading' near the end of negotiations. Id. Where the parties differ is the meaning of the Association dropping that proposal - the Association thought they were dropping the proposal that American agree to admit (or "accrete") those employees into the bargaining unit in the JCBA while American believed that the Association was promising not to seek accretion of those employees into the bargaining unit in the future. See SMF iii! 41, 44-50. Barbaro testified that she understood much of the Article 4 discussion at the table to concern what work was properly covered by the CBA: Our whole argument constantly on this when we were trying to determine what work was being brought into the contract was who voted; right? Who voted and what work did they do? Because in my opinion, if they did the work and voted, that work, then, obviously, was work covered under the, you know, group that we represent. See SMF if 38. Barbaro testified that in learning about the work performed by American employees, she learned that there is a center called "BEEMUS" at American that handled baggage, performing work that mimicked US Airways' CBRO work. See SMF if 39. With regard to the Association's position on inclusion of the CBRO employees, Barbaro explained, So what we asked the Company is, recognize these people. We understand they didn't vote in the group. However, guess what? They're doing BEEMUS work. So why don't you recognize them, bring them into the group and - because they're doing our work. We're not asking you to fire all of these people. I think there was even a conversation at some point about that very thing. We - we were asking just to have the work be brought in and have no negative ramifications to the people that were doing the work. See SMF if 40. Barboro's understanding of the Association's position when it dropped its request for CBRO work to be covered by the Agreement was "we no longer asked that you recognize voluntarily to bring those employees under this contract." See SMF if 41. 15 Case 1:16-cv-01630-RDM Document 18-1 Filed 01/25/17 Page 15 of 41 Company negotiator Jerry Glass testified that near the end of negotiations, the parties discussed the construction of Article 4 and what work would be exclusive to the bargaining unit and what work could be outsourced, either to other Company employees or to an outside contractor. See SMF if 42. Glass testified that the Association agreed to "forfeit" certain categories of work including CBRO. See SMF if 43. Glass testified that in the context of negotiations and bargaining history, he understood that the people performing the work at issue would not be part of the bargaining unit and that the Association was agreeing not to seek to "add that work back into the Collective bargaining Agreement at a later point in time." See SMF ifif 44-45. Glass testified that the Association stated that there would be no accretion of these employees, which he understood to mean "they would not be part of the craft or class of Passenger Service through negotiations or any other form." See SMF ifif 46-47. However, "[ o ]n cross examination Glass agreed that there was no explicit agreement that the Union would not try to accrete the employees. He stated that it was nonetheless an implied agreement that they would not attempt to do so." See SMF if 48. Association witnesses believed that when they agreed that the CBRO work was not covered by the Agreement, they had not given up the right to ever attempt to organize the CBRO's; Association negotiator Ron Collins testified that "he would not have [ordered the organizing effort to "stand down"] because the Union never agreed not to attempt to organize this group." See SMF if 49. Collins testified, ... my view is that it should have been very explicit that, you know, if -- you know, if we're agreeing to let the Company contract out this work, it should have been written in the contract that we would not attempt to organize the group or accrete the group. See SMF if 50. 16 Case 1:16-cv-01630-RDM Document 18-1 Filed 01/25/17 Page 16 of 41 Witnesses for both American and the Association agreed that the Association did not make any proposals concerning the inclusion of SSCs or CRs in the unit and that neither party discussed these groups during negotiations. See SMF ii 51. On August 3, 2016, Arbitrator Sergent issued an Opinion and Award sustaining American's grievance and ordering the Association "to withdraw its pending accretion application before the NMB and take no further accretion efforts during the term of the JCBA." See SMF ii 52. By mutual agreement, the parties asked the NMB to stay its investigation of the Association's petition to accrete the CBRO and SSC employees pending the outcome ofthis lawsuit. The NMB agreed to that request on August 23, 2016 and the case remains in abeyance. See SMF ii 53. ARGUMENT Summary judgment is appropriate when the moving party establishes through the record and declarations that there exists no genuine issue of material fact and the movant is entitled to judgment as a matter oflaw. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). All parties to this matter have agreed that there is no dispute as to the material facts and that the case is ripe for summary judgment on the pleadings and administrative record. The scope of judicial review of arbitration awards under the RLA has been characterized as "among the narrowest known to the law." Union Pac. R.R. v. Sheehan, 439 U.S. 89, 94 (1978); Diamond v. Terminal Ry., 421F.2d228, 233 (5th Cir. 1970). The RLA specifies only three grounds for judicial review: (1) the failure of a System Board "to comply with the 17 Case 1:16-cv-01630-RDM Document 18-1 Filed 01/25/17 Page 17 of 41 requirements" of the RLA; (2) failure of a System Board "to conform, or confine itself, to matters within the scope of [its] jurisdiction;" and (3) "fraud or corruption" by a System Board member. 45 U.S.C. §153, First (p)-(q). Summary judgment is appropriate here because, under the facts as accepted by all the parties, there are two bases for overturning the Sergent Award: the Board failed to "to conform, or confine itself, to matters within the scope of [its] jurisdiction" and the Board failed to comply with the requirements of the RLA. I. The System Board Exceeded Its Jurisdiction by Determining Matters Reserved to the Sole Discretion of the National Mediation Board. A. Questions Related to Representation are for the exclusive jurisdiction of theNMB. The Railway Labor Act, Section 2, Ninth assigns to the National Mediation Board ("NMB") extensive authority to settle questions of representation. See 45 U.S.C. § 152, Ninth; Teamsters v. Brotherhood of Railway Clerks, 402 F.21d 196, 205 (D.C. Cir. 1968). The U.S. Supreme Court has held that the NMB has broad discretion under 2, Ninth "to utilize any ... appropriate method of ascertaining then names of [employees'] duly designated and authorized representatives," to "designate who may participate" in a representation election, and to "establish the rules that govern the election." National Mediation Board v. Assn. for the Benefit of Non-Contract Employees, 380 U.S. 650, 658 (1965). In keeping with this understanding of the RLA' s structure, courts have found that the NMB' s jurisdiction over certain representation questions is exclusive; the NMB "undoubtedly has exclusive jurisdiction over the 'certification' ofrepresentatives under Section 2, Ninth." Association of Flight Attendants v. USAir, Inc., 24 F.3d 1432, 1440 (D.C. Cir. 1994). The NMB also has exclusive jurisdiction over determinations 18 Case 1:16-cv-01630-RDM Document 18-1 Filed 01/25/17 Page 18 of 41 of the composition of a craft or class, and which employees should be placed in it. Switchmen's Union ofN. America v. National Mediation Board, 320 U.S. 297, 300-301 (1943). Thus, the courts have consistently found themselves not to have the authority to review the NMB' s determinations with regard to representational matters, and in particular to the composition of a craft or class. In the foundational Supreme Court case Switchmen's Union of N. America v. National Mediation Board, 320 U.S. 297 (1943), a union challenged the NMB's certification of a rival union as representative of a craft or class, arguing that smaller crafts or classes would be more appropriate. The Court first noted the Board's broad authority to decide representation questions: The Act in Section 2, Fourth writes into law the 'right' of the 'majority of any craft or class of employees' to 'determine who shall be the representative of the craft or class for the purposes of this Act.' That 'right' is protected by Section 2, Ninth which gives the Mediation Board the power to resolve controversies concerning it and as an incident thereto to determine what is the appropriate craft or class in which the election should be held. Switchmen's Union ofN. America v. National Mediation Board, 320 U.S. at 300-301. On the basis of the Act's broad grant of authority, the Court held that it did not have the power to review the NMB's craft or class determinations, as those were exclusive to the NMB: "the intent seems plain - the dispute is to reach its last terminal point when the administrative finding was made. There was to be no dragging out of the controversy into other tribunals oflaw." Id. see also Allen v. CSX Transp., 325 F.3d 768, 774 (6th Cir. 2003) (holding that a "dispute as to the identity of representatives" is "within the exclusive jurisdiction of the National Mediation Board"); Flight Engineers v. National Mediation Board, 294 F.2d 905, 908 (D.C.Cir. 1961) cert. denied, 368 U.S. 956 (1962) (holding that "only the NMB (or the committee designated by it) has the power 19 Case 1:16-cv-01630-RDM Document 18-1 Filed 01/25/17 Page 19 of 41 to make craft or class determinations" and that "the decision of the Board in setting up a 'class' for representation in a jurisdictional dispute is unreviewable by the courts"). Arbitrators, no less than courts, are also barred from making representation decisions that are within the exclusive purview of the NMB. Such cases often arise where two carriers are merging and competing questions of contract interpretation and representation are implicated. In Western Airlines, Inc. v. Teamsters, 480 U.S. 1301 (1987), a carrier applied to the U.S. Supreme Court for a stay of a federal court of appeals order which enjoined merger of two airlines pending arbitrations of successorship questions by two unions under their respective collective bargaining agreements. Justice o:connor, acting as Circuit Justice, granted the airline's application for the stay, holding 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, therefore, not for arbitration panels to decide. Id. at 13 05. Similarly, in Air Line Employee Assn. v. Republic Airlines, Inc., 798 F.2d 967, 968 (7th Cir. 1986) (per curiam), the Court of Appeals reviewed a case filed by a plaintiff union requesting, among other things, an order compelling arbitration of its contract claims arising from the merger of two airlines. The surviving carrier in that merger apparently had voluntarily recognized and made an agreement with the plaintiffs rival union while the NMB' s investigation of the combined craft's certified representative was still pending. Holding that "[t]he Act commits disputes involving a determination of who is to represent airline employees in collective bargaining to the exclusive jurisdiction of the National Mediation Board," the Court refused to compel arbitration, since requiring the parties to arbitrate would ratify the plaintiffs stance that it was still the representative of employees, which was beyond the Court's jurisdiction. Instead, the Court deferred all questions of representation to the NMB and refused to 20 Case 1:16-cv-01630-RDM Document 18-1 Filed 01/25/17 Page 20 of 41 order arbitration. Id. quoting International Brotherhood of Teamsters v. Texas Int'l Airlines, 717 F.2d 157, 161 (5th Cir. 1983). In analogous cases under the NLRA, courts have overturned arbitral decisions that usurped the National Labor Relations Board's ("NLRB's") exclusive authority over representation questions, which is parallel to that of the NMB. (As discussed in Section II.A herein, courts have often analogized to the NLRA when interpreting the RLA.) Thus, in Boire v. International Brotherhood of Teamsters, 479 F.2d 778, 794 (5th Cir. 1973), the Court of Appeals for the Fifth Circuit rejected the union's argument that "an arbitrator's accretion decision should be given controlling weight by the [NLRB]." The Court held that "representation and unit determination questions are always subject to the superior jurisdiction of the NLRB" and that the NLRB need only defer to an arbitrator's accretion determination if, after NLRB review, "such determination is consistent with the [NLRB]'s own standards." Because the arbitrator's accretion decision apparently conflicted with the NLRB's standards, the Circuit Court refused to overturn the district court's order barring the union's enforcement of the arbitration award supporting accretion. Id. at 786, 794-95. Similarly, in Pilot Freight Carriers, Inc. v. International Brotherhood of Teamsters,659 F.2d 1252, 1258 (4th Cir. 1981), the Teamsters struck an employer to induce it to recognize arbitration awards that accreted the striking employees into a pre-existing bargaining unit, although the NLRB had not yet ruled on the propriety of the accretion. Id. at 1254. In deciding whether the NLRB properly sought an injunction against the strike, the Court held that Board did not owe deference to the arbitration panels' accretion decisions: the awards of the Multi-State Committee and the National Grievance Committee in favor of the union on the accretion controversy were not final and binding. The 21 Case 1:16-cv-01630-RDM Document 18-1 Filed 01/25/17 Page 21 of 41 question of accretion is ultimately committed to the NLRB. Although the parties may arbitrate this issue, the bargaining agreement's provision pertaining to accretion cannot supplant the Board's authority. Id. at 1258; see also, NLRB v. Magna Corp., 734 F.2d 1057, 1063 (1984) (agreeing with NLRB holdings that "issues involving appropriateness of unit and criteria are particularly within the Board's expertise" and upholding the NLRB's rejection of an arbitrator's award declining to add a new position to a unit); Sheraton-Kauai Corp. v. NLRB, 429 F.2d 1352, 1357 (9th Cir. 1970) (holding that neither the Board's discretion to recognize collective bargaining units nor to protect employees' rights under Section 7 to organize or decline to organize "can be limited by a contract between a union and an employer."); Local No. 1547, IBEW v. Local 959, Int'l Broth. of Teamsters, 356 F.Supp. 636, 641 (D. Alaska 1973) (holding similarly). A host of cases decided by the NLRB have reached the same conclusion: that "the determination of questions of representation, accretion, and appropriate unit do not depend on contract interpretation but involve the application of statutory policy, standards, and criteria" and thus "are matters for decision of the [NLRB] rather than an arbitrator." Marion Power Shovel, Inc., 230 NLRB 576, 577-78 (1977); see also Certco Distribution Centers, 346 NLRB 1214, 1224 (2006); Advanced Architectural Metals, 347 NLRB No. 111 (2006); Super Value Stores, 283 NLRB 134, 135 (1987); see also McDonnell Douglas v. NLRB, 59 F.3d 230, 235 (D.C. Cir. 1995). B. The System Board Went Beyond Interpreting the JCBA, to Trespass into Representation Questions Reserved for the NMB. The System Board exceeded its jurisdiction by sustaining American's grievance based on a "tacit" agreement by the Association not to seek accretion in the future and ordering the Association "to withdraw its pending accretion application before the NMB and take no further 22 Case 1:16-cv-01630-RDM Document 18-1 Filed 01/25/17 Page 22 of 41 accretion efforts during the term of the JCBA." See Opinion and Award at 26, 30. The framed issue, as stipulated by the parties, was "Whether the Association is in violation of the joint Collective Bargaining Agreement by seeking to accrete the CBRO, SSC, and/or CR Representatives into the Passenger Service employee craft or class? If so, what shall be the remedy?" See Opinion and Award at 5. As noted by the System Board, the Association argued that the System Board was without jurisdiction to decide this dispute because the NMB has exclusive jurisdiction over representation matters. Id. at 20. The System Board "concluded that the nature of the instant dispute is such that it does not fall within the exclusive jurisdiction and authority of the NMB." Id. While the System Board acknowledged that "the NMB has exclusive jurisdiction over representation disputes involving the definition of a bargaining unit and the definition of employee collective bargaining representatives" the instant dispute was not a representation dispute but a "minor dispute" because it "involve[s] the implementation or application of an existing collective bargaining agreement." Opinion and Award at 20. The case at hand clearly does not fall within the definition of a representation dispute because it does not involve the definition of a bargaining unit ... .Instead, it clearly falls within the definition of a minor dispute because it involves an issue of contract interpretation pertaining to the Company's right to use non-bargaining unit personnel to perform CBRO, CRR and SSC work. As such, it is clearly the type of dispute that can be heard and decided by the System Board of Arbitration." Opinion and Award at 21. But that question is not one the parties commissioned the arbitrator to decide. The issue before the System Board was one of whether it was permissible for the Association to seek accretion, not whether the Company had the "right to use non-bargaining unit personnel to perform CBRO, CRR and SSC work." 23 Case 1:16-cv-01630-RDM Document 18-1 Filed 01/25/17 Page 23 of 41 Nonetheless, after denying that it was addressing a representation matter, specifically whether the Association could seek accretion, the System Board addressed itself to that question throughout the remainder of the Award. For example, the Board found that that "while the Association may be correct in its assertion that it has the 'right under the RLA to accrete employees in the Passenger Service craft or class', the evidence shows that it bargained away such a right during negotiations." Opinion and Award at 22. The System Board also found, again without a single citation, that "as a matter of Federal Labor Law, a Union's agreement not to seek accretion is enforceable." As discussed below, "Federal Labor Law" provides that a Union's agreement not to seek accretion may only be enforceable if such agreement was express. The System Board noted that even the Company's chief negotiator admitted there was not explicit agreement (SUF if 45), but rather found a "tacit" agreement by the Association not to pursue accretion. Opinion and Award at 26. Thus, it is manifestly clear that the System Board was considering whether accretion was appropriate, and evaluating federal law and NMB precedent on the subject (incorrectly and without citation) in finding that accretion was not appropriate and indeed ordering the union to desist from its attempt to accrete. Although it attempted to characterize it as such, the System Board was not limiting itself to the question whether the work performed by the employees was, under the collective bargaining agreement, exclusive to Association-represented members. Indeed, whether or not CBRO, SSC, or CR work may be contracted out was not a question before the System Board and has no bearing on whether employees currently performing that work are part of the craft or class of Passenger Service employees. The Association does not challenge that the Agreement does not require American to use Association-represented employees to do the work performed by CBRO, SSC, or CR employees. 24 Case 1:16-cv-01630-RDM Document 18-1 Filed 01/25/17 Page 24 of 41 See Merritt v. International Ass'n of Machinists and Aerospace Workers, 2008 WL 5784439 *15 (E.D. Michigan, September 22, 2008) (finding that an existing agreement did not apply to a new group of employees simply by virtue of their accretion into the class). Rather, the question is whether the American employees actually doing the work have the right to seek accretion into the Passenger Service Employee craft. Indeed, by American's admission this case arose when the Association sought accretion by collecting authorization cards to be submitted to the NMB. The Association has never claimed the work as exclusive to bargaining unit personnel. Questions of accretion, like all questions of representation, are exclusively reserved to the NMB. In fact, this accretion question (at least with respect to CBRO and SSC employees, who are the subject of the Association's petition) is currently pending before the NMB, subject to a mutually-agreed upon stay while this case is resolved. Before the NMB, American will be free to argue to the NMB that accretion of these employees is not appropriate, using the same arguments it supplied to the System Board. The authority to decide this question, however, is exclusively for the NMB. And the employees in question have the right under the RLA to have this matter resolved by the agency to which Congress gave exclusive authority over such matters, rather than by a System Board established by a collective bargaining agreement that these CBRO and SSC employees never had a chance to influence or to vote upon. II. The Award Should Be Overturned Because it Does Not Comply with the Railway Labor Act. Ensuring that employees have the right to select a bargaining representative of their own choosing is a "fundamental goal of Federal labor policy." Local No. 1547, Intern. Broth. ofElec. Workers, AFL-CIO v. Local No. 959, Intern. Broth. of Teamsters, Chauffeurs, 356 F.Supp. 636 (D. Alaska 1973) citing Section 7 of the Labor-Management Relations Act of 1947 ("Employees 25 Case 1:16-cv-01630-RDM Document 18-1 Filed 01/25/17 Page 25 of 41 shall have the 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." 29 U.S.C. § 157 (Emphasis added).) Thus, it is no small things for the System Board to find that the Association "tacitly" waived any right to seek accretion of the CBRO employees, or to foreclose the right of SSCs to organize without any waiver at all, "tacit" or otherwise. These unrepresented employees had no say in the matter. The System Board's blithe holding that a "tacit" agreement to waive such rights of these employees was enforceable under Federal Labor Law, without any citation, actually flies in the face of the Railway Labor Act and federal labor case law. The right of employees to organize, and relatedly, the right of unrepresented employees to seek accretion into an existing bargaining unit, is protected by the RLA, which protects the rights of employees "to organize and bargain collectively through representatives of their own choosing" and "to determine who shall be the representative of the craft or class." 45 U.S.C. 152, Fourth. The Act further provides that a carrier may not "deny or in any way question the right of its employees to join, organize, or assist in organizing the labor organization of their choice" and that "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". Id. The RLA is silent as to whether a Union can waive the right to seek accretion or bargain away the organizing rights of unrepresented employees and the Association has been unable to find any case-law interpreting the RLA on this point. The National Labor Relations Act ("NLRA") is likewise silent as to this question. However, there is case-law interpreting the NLRA, 29 U.S.C. 157 (also known as 26 Case 1:16-cv-01630-RDM Document 18-1 Filed 01/25/17 Page 26 of 41 "Section 7") on this issue and in some cases the NLRA may provide useful analogies for interpreting the RLA. If this is such a case, any waiver must be express, and the "tacit" waiver found by Arbitrator Sergent is insufficient to extinguish the employees' rights here. The alternative finding is equally fatal to American's arguments: if the statutes are not analogous in this area because of important differences between the NLRA and RLA, there are strong arguments that militate against allowing a union that does not represent them to waive any currently unrepresented employees' rights under the RLA. A. In some cases, it may be appropriate for the courts to look to the NLRA for assistance in construing the RLA. The courts sometimes look to the National Labor Relations Act ("NLRA") and labor Management Relations Act "(LMRA") for assistance in construing the Railway Labor Act. See Trainman v. Jacksonville Terminal, 394 U.S. 369, 383 (1969); Kaschak v. Consolidated Rail Corp., 707 F.2d 902, 910 (6th Cir. 1983). Analogy between NLRA and RLA may be instructive, particularly "where the general principles to be considered are capable of consistent application." See Kaschak v. Consolidated Rail Corp., 707 F.2d at 910 (finding that Court may apply Vaca v. Sipes, 386 U.S. 171 (1967), an LMRA case, in an RLA context.). For example, in McCall v. Chesapeake & Ohio Ry. Co., 844 F.2d 294 (6th Cir. 1988) considered judicially developed preemption doctrines under the LMRA and NLRA in determining whether a state anti- discrimination statute was preempted by the RLA, focusing on ways in which statutes were analogous. 844 F.2d 294, 299 (6th Cir. 1988). The Sixth Circuit found that the NLRA doctrine known as Garmon preemption also applied in the RLA context because both statutes envision binding administrative proceedings into which virtually all individual labor-management disputes are directed even though the structure of the arbitration process under the RLA is 27 Case 1:16-cv-01630-RDM Document 18-1 Filed 01/25/17 Page 27 of 41 somewhat different than the grievance process under the NLRA. Id. at 301. Likewise the Eleventh Circuit found that analogy between RLA's and NLRA's duty to bargain in good faith was appropriate because there is no reason to conclude that the standard for bargaining in good faith under the NLRA is different than under the RLA. International Ass'n of Machinists and Aerospace Workers v. Transportes Aereos Mercantiles Pan Americandos, S.A., 924 F.2d 1005, 1009-1010 (11th Cir. 1991); see also United Transp. Union v. Chicago & Illinois Midland Ry. Co., 731F.Supp.1336, 1341 (C.D. Ill. 1990) (finding that analogy between NLRA and RLA was "instructive" in finding that railway employer was not required under the RLA to engage in national handling of wage and rules proposals because national handling as used with reference to the RLA is similar to multi-employer bargaining under the NLRA and the NLRB and courts have found that mutual consent is required for multi-employer bargaining). Courts also apply the NLRA-derived standard in duty of fair representation cases, both for the articulation of the duty's requirements, Glover v. St. Louis-Santa Fe Railway, 393 U.S. 324, 329-31 (1969), as well as for the establishment of a statute of limitations for the filing of complaints arising from alleged breach of the duty. See e.g. Arnold v. Air Midwest, Inc.JOO F.3d 857 (10th Cir. 1996); Wood v. Houston Belt & Terminal Ry., 958 F.2d 95, 97 (5th Cir. 1992); Gvozdenovic v. United Airlines, Inc., 933 F.2d 1100 (2nd Cir.) cert. denied 502 U.S. 910 (1991). In each case, the courts applied common standards because the duty a union owes its members is consistent under the structure of the RLA and NLRA. On the other hand, the Supreme Court has stated that, "the National Labor Relations Act cannot be imported wholesale into the railway labor arena. Even rough analogies must be drawn circumspectly, with due regard for the many differences between the statutory schemes." Trainman v. Jacksonville Terminal, 394 U.S. at 383 (declining to examine the law developed 28 Case 1:16-cv-01630-RDM Document 18-1 Filed 01/25/17 Page 28 of 41 under the NLRA to determine what kind of secondary picketing may be enjoined by state courts in a dispute arising under the RLA, which has explicitly different standards for picketing). Thus, the Supreme Court has declined to find in the RLA an implied limit on a union's resort to secondary activity by analogy to the NLRA. See Trainman v. Jacksonville Terminal, 394 U.S. 369 (1969); Burlington Northern R. Co. v. Maintenance of Way Employees, 481 U.S. 429 (1987). These cases have read the RLA to provide greater avenues of self-help to parties that have exhausted the statute's "virtually endless" dispute resolution mechanisms than would be available under the NLRA. Trainman v. Jacksonville Terminal, 394 U.S. at 444; Burlington Northern v. Maintenance of Way Employees, 481 U.S. at 443. Similarly, in Air Line Pilots Ass'n v. Trans World Airlines, Inc., 729 F.Supp. 888 (D.D.C. 1989), this Court declined to import into the RLA arena a requirement found in the NLRA obliging parties to disclose information relevant to their collective bargaining agreements.. Although both statutes contained "nearly identical" language exhorting parties to, "exert every reasonable effort to make and maintain agreements concerning rates of pay, rules and working conditions, and to settle all disputes, whether arising out of the application of such agreements or otherwise ... ," the NLRA contains an additional provision, "not mirrored in the RLA requiring parties to 'confer in good faith' with respect to labor agreements ... which has been held to '[provide] the foundation for the broad obligation to disclose' under the NLRA, and '[n]o comparable command exists in the RLA."' Id. at 890, citing Teamsters v. Pan American World Airways, Inc., 716 F.Supp. 726, 734 (E.D.N.Y. 1989). B. The System Board erred in finding the Association waived the right to seek accretion because there was no express waiver. 29 Case 1:16-cv-01630-RDM Document 18-1 Filed 01/25/17 Page 29 of 41 The RLA and the NLRA are analogous with respect to their protection of employees' right to organize and select bargaining representatives of their own choice. A fundamental goal of Federal labor policy is to preserve employees' freedom to select a bargaining representative of their own choosing, free of employer coercion. Local No. 1547, Intern. Broth. ofElec. Workers, AFL-CIO v. Local No. 959, Intern. Broth. of Teamsters, Chauffeurs, 356 F.Supp. 636 (D. Alaska 1973), upheld by Local No. 1547, Intern. Broth. ofElec. Workers, AFL-CIO v. Local No. 959, Intern. Broth. of Teamsters, Chauffeurs, 507 F.2d 872, 877 (9th Cir. 1974)(finding that "district court lacked jurisdiction to grant specific enforcement of the no-raid agreement after the NLRB had ordered an election," based on "superior authority of the Board in representation matters, combined with the paramount employee right of free choice under§ 7."). Employees' freedom to select a bargaining representative of their own choosing, "has been expressly codified in Section 7 of the Labor-Management Relations Act of 1947, which provides: Employees shall have the 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. 29 U.S.C. § 157, quoted in Local No. 1547, Intern. Broth. ofElec. Workers v. Local No. 959, Intern. Broth. of Teamsters, 356 F.Supp. at 639. Likewise, the NLRA provides that "Employees shall have the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing ... " 29 U.S.C. § 157. The Supreme Court has stated that "The central purpose of the [NLRA] was to protect and facilitate employees' opportunity to organize unions to represent them in collective-bargaining negotiations." American Hosp. Ass'n v. NLRB, 499 U.S. 606, 609 (1991). The RLA also provides that "Employees shall have the right to organize and bargain collectively through representatives of their own choosing." 45 U.S.C. 152, Fourth. "The preservation of the 30 Case 1:16-cv-01630-RDM Document 18-1 Filed 01/25/17 Page 30 of 41 employees' right to organize" is one of the "general purposes enumerated in the RLA." Kaschak v. Consolidated Rail Corp., 707 F.2d 902, 907 (6th Cir. 1983), but see Bhd. of R.R. Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 385 n.20 (1969) (rejecting contention that Section 2, Fourth of the RLA is "comparable" to Section 7 of the NLRA; "[Section]" 2 Fourth of the RLA, was designed primarily, if not exclusively, to prohibit coercive employer practices."). Although the System Board was correct in finding that "as a matter of Federal Labor Law, a Union's agreement not to seek accretion is enforceable," it erred in finding an enforceable agreement here. The NLRB applies a "strict standard" in finding a waiver of a union's right to file a representation petition, a standard that was not satisfied here. The National Labor Relations Board has recognized that parties to a collective-bargaining agreement may waive certain fundamental statutory rights- including the right to seek to represent employees. Springfield Terrace LTD, 355 NLRB 937, 937 (2010). In a rule that has become known as the Briggs Indiana doctrine, the NLRB has found that "where a collective- bargaining agreement contains a provision by which the union obligates itself to refrain from seeking to represent certain employees, the Board will not during the life of that agreement entertain a petition for representation of such employees by that union." Cessna Aircraft Co., 123 NLRB 855, 856 (1959) citing Briggs Indiana Corp., 63 NLRB 1270 (1945). However, under a related doctrine known as the Cessna doctrine, such waiver must be express. Cessna Aircraft Co., 123 NLRB 855, 857 (1959). In Cessna Aircraft Co., the Board found that "A union which agrees by contract not to represent categories of employees during the term of a collective-bargaining agreement may not during that period seek their representation." 123 NLRB 857. However, the Board made clear that this rule only applies, "where the contract 31 Case 1:16-cv-01630-RDM Document 18-1 Filed 01/25/17 Page 31 of 41 itself contains an express promise on the part of the union to refrain from seeking representation of the employees in question or to refrain from accepting them into membership." Id. (emphasis in original) Moreover, the Board rejected the basis for finding a tacit promise, specifying that, "such promise will not be implied from a mere unit exclusion, nor will the rule be applied on the basis of an alleged understanding of the parties during contract negotiations." Id. In a later case, the NLRB required that the waiver be "clear, knowing, and unmistakable, whether predicated on a contractual provision or by conduct." Springfield Terrace, 355 NLRB at 937. Decades later, Briggs Indiana and Cessna remain good law. In Lexington Health Care Group, LLC, the Board enforced a promise by the union not to undertake specified organizing activities for a period of 12 months- a promise enshrined in a written document that was separate from the CBA. 328 NLRB 894 (1999). The Board found that "the promise not to seek representation need not be embodied in a collective-bargaining agreement. It is sufficient that there be an express promise." Id. at 896. Again, the significant distinction was between an express and an implied promise. In Springfield Terrace LTD, 355 NLRB 937, 937 (2010), the Board continued to require an express agreement, applying a "strict standard for finding a waiver of the Union's right to file" a representation petition. The employer claimed it had "entered into a neutrality agreement as a quid pro quo for the Union's waiver of any attempt to organize [licensed practical nurses] during the term of the agreement." Id. at 938. In support, the employer pointed to two provisions in the CBA- one that excluded the LPN's from the bargaining unit and another that prevented the union from representing the employees excluded in the first provision. Id. The Board found that the two provisions in conjunction did not amount to the required "express promise," and that "a mere exclusionary clause, without more, is insufficient to bar the present petition." Id. at 937, citing Cessna Aircraft. 32 Case 1:16-cv-01630-RDM Document 18-1 Filed 01/25/17 Page 32 of 41 The Cessna doctrine requiring an express waiver has been upheld by the courts. In Peabody Coal v. NLRB, 709 F.2d 567, 568 (9th Cir. 1983), the Ninth Circuit, citing Cessna, ruled "the so-called Briggs Indiana rule is applied only where the contract contains an express provision by the union to refrain from accepting the specified employees as members." The Ninth Circuit continued, "[a] contract clause which merely excludes a group of employees from a unit description is insufficient, in and of itself, to effect a limitation on the employees' right to select a representative of their choice." Id. In that case, the employer relied on contract language which stated, "watchmen, clerks, engineering and technical forces of the Employer working at or from a district or local mine office are exempt from this agreement" and a memorandum of understanding which stated: "The parties have agreed that agricultural and warehouse employees will not perform classified work." Id. at 568. The Ninth Circuit found that this language did not amount to an agreement by the union not to represent those workers. Id. The Ninth Circuit noted that "when the parties intended to bar the union from representing certain categories of supervisory employees they did so in clear and unambiguous terms," and cited language providing, "[t]he Union will not seek to organize or ask recognition for such exempted supervisory employees during the life of this agreement." Id. at 568, fn. 1. More recently, the District Court of the Southern District of New York reaffirmed Cessna's core holding, ruling "'a contract clause excluding a particular group of employees from its coverage does not bar a union from seeking to represent those employees via a self-determination election."' Mandarin Oriental Mgmt., (USA) Inc. v. New York Hotel & Motel Trades Council, AFL-CIO, 2014 WL 345211, * 7 (S.D.N.Y. Jan31, 2014) citing Cessna Aircraft Co., 123 NLRB at 857. In the present case, the System Board not only failed to find an express promise, as required under the Cessna Doctrine, but relied upon the very rationale rejected by the NLRB- an 33 Case 1:16-cv-01630-RDM Document 18-1 Filed 01/25/17 Page 33 of 41 implied waiver based upon an exclusionary clause. There was no language in the JCBA or any other written document in which the Association expressly promised not to seek accretion of the employees at issue. The System Board found that Company negotiator Jerry Glass admitted "that there was no explicit agreement that the Union would not try to accrete employees." Opinion and Award at 13. The only agreement the System Board could find was a tacit agreement "that it would not pursue an accretion." Opinion and Award at 26. Moreover, the System Board found this tacit agreement using rationales that have been specifically rejected by the NLRB and the courts as a basis for finding a waiver of any attempt to organize. The System Board based its finding on the language of Article 4 which allowed the work performed by the CBRO, CR, and SSC representatives to be performed by "members of the Passenger Service craft or class or third party contractors or unrepresented Company employees." Opinion and Award at 23. However this theory has been expressly rejected as basis for a promise by the union not to undertake organizing activities. Peabody Coal v. NLRB, 709 F.2d at 568 ("[a] contract clause which merely excludes a group of employees from a unit description is insufficient, in and of itself, to effect a limitation on the employees' right to select a representative of their choice."); Mandarin Oriental Mgmt., (USA) Inc. v. New York Hotel & Motel Trades Council, AFL-CIO, 2014 WL at* 7 ("a contract clause excluding a particular group of employees from its coverage does not bar a union from seeking to represent those employees via a self-determination election."); Cessna Aircraft, 123 NLRB at 857 (finding that "such promise will not be implied from a mere unit exclusion"); Springfield Terrace, 355 NLRB at 937 (rejecting employer's argument that two provisions in the CBA- one that excluded the LPN' s from the bargaining unit and another that prevented the union from representing the 34 Case 1:16-cv-01630-RDM Document 18-1 Filed 01/25/17 Page 34 of 41 employees excluded in the first provision- did not amount to the required "express promise," and that "a mere exclusionary clause, without more, is insufficient to bar the present petition."). The System Board also erred in relying on the bargaining history to find a promise by the Association not to seek accretion in the future. Opinion and Award at 24-25. Again, the NLRB has rejected "an alleged understanding of the parties during negotiations" for finding such a promise. In Springfield Terrace, the NLRB rejected the employer's claim that it had "entered into a neutrality agreement as a quid pro quo for the Union's waiver of any attempt to organize [licensed practical nurses] during the term of the agreement." Id. at 938; see also Cessna Aircraft, 123 NLRB at 857 (finding that "an express promise on the part of the union to refrain from seeking representation of the employees in question or to refrain from accepting them into membership" will not be implied "on the basis of an alleged understanding of the parties during contract negotiations."). Thus the System Board's own factual findings do not satisfy the Cessna requirement of an express waiver. Association negotiator Ron Collins was absolutely correct in his understanding that such an agreement must be "very explicit: I mean, my view is that it should have been very explicit that, you know, if -- you know, if we're agreeing to let the Company contract out this work, it should have been written in the contract that we would not attempt to organize the group or accrete the group. SUF at i! 47. C. Alternatively, in This area the RLA is Not Analogous to the NLRA, and there Should Be No Waiver At All. The RLA is distinct from the NLRA in several salient points that makes an agreement to exclude employees from accretion into an existing craft or class destructive to their right to 35 Case 1:16-cv-01630-RDM Document 18-1 Filed 01/25/17 Page 35 of 41 organize and be represented if they so choose. The Board in Briggs Indiana Corp., 63 NLRB 1270 (1945), relied on several factors when concluding that it was permissible for a labor organization to waive the right to represent a certain group of employees in a collective bargaining agreement. Chief among them was that because of the short time that the promise covered (12 months), it was not a significant dilution of the employees' right to select a representative of their own choosing: "The agreement when made was therefore for a reasonably short period. Although it has twice been automatically renewed, [it] could have been (and may yet be) terminated at the end of any contract year." 63 NLRB at 1272. The next factor was that the employees in question only lost the opportunity to be represented by this particular union, but could still obtain representation by another union: [T]he Board does not depart from the earlier view that rights guaranteed employees under the Act cannot themselves be bargained away. Yet it remains true that the exercise of the right given employees to choose any representative they desire is never literally unrestricted; the field of choice is necessarily limited by the number of labor organizations willing to undertake collective bargaining on their behalf. . .. Id. 1 Because the excluded employees could have, even during the life of the collective bargaining agreement at issue, obtained representation by another labor organization and because they could have waited until the expiration of the current CBA which only lasted a single year in order to be represented by union, the Board found that the waiver was valid and not an infringement on their rights under the NLRA. Those factors are not present in the instant case. First, the RLA and NLRA differ as to how long an agreement not to represent could be enforceable. It is not a legal requirement that all contracts under the NLRA must expire, but as a 1 One other factor that the Board found significant was the class of employees at issue- "plant-protection employees-" are "not ordinary employees, but [a group] whose status [under the NLRA] has been subject of doubt and of protracted litigation." Id. at 1273. That factor is not present here but militates in favor ofa finding of waiver under the NLRA, as plant guards generally cannot be represented by the same union that represents other employees at a facility or a union that represents non-guards. 29 U.S.C. 159(b )(3). 36 Case 1:16-cv-01630-RDM Document 18-1 Filed 01/25/17 Page 36 of 41 practical matter most do because of the Board's contract-bar policy. Generally speaking, an existing collective bargaining agreement is a bar to an election. See Hexton Furniture Co., 111 NLRB 342 (1955); Fay v. Douds, 172 F.2d 720, 724 (2nd Cir. 1949) (contract bar is lifted as soon as the incumbent union and employer begin to negotiate a new contract). However, a contract cannot be a bar forever. The Board first imposed a limitation of the duration for which an existing contract could bar an election in Pac. Coast Ass'n of Pulp & Paper Mfrs., 121 NLRB 990, 992 (1958), establishing that a contract with a fixed duration of more than two years was only a bar to elections for the first two years of its existence. In General Cable Corp., 139 NLRB 1123, 1125 (1962), the Board extended this time to three years, explicitly stating that it was making no other changes to the doctrine. Although it is permissible for a contract under the NLRA to be of indefinite duration, such an indefinite contract does not bar an election for any period of time. Pac. Coast Ass'n of Pulp & Paper Mfrs., 121 NLRB at 993-94. Because of these rules, although NLRA contracts may and sometimes do exceed a three year period, it is common for them to be limited to three years in order to operate as a bar for their entire periods. See General Cable Corp., 139 NLRB at 1127 (noting that "the majority of the contracts covering more than 1,000 employees ... were for terms of more than 2 years; and that of that majority ... the greater number of agreements were of 3 years' duration"). In contrast, "[ c ]ollective bargaining agreements under the RLA typically do not terminate on specified dates; instead, they usually become 'amendable' if a party serves a timely notice of intent to change the agreement under Section 6 of the RLA." ABA Section of Labor & Employment Law, The Railway Labor Act, Ch. l.II.K (3d ed. 2012) (Chris A. Hollinger, Editor- in-Chief); see also 45 U.S.C. § 156 (2012). The language used in the JCBA follows this practice. Specifically, Article 37 - Duration, states: 37 Case 1:16-cv-01630-RDM Document 18-1 Filed 01/25/17 Page 37 of 41 Except as otherwise noted, this Agreement shall become effective December 1, 2015, and shall remain in full force and effect pursuant to the RLA through its amendable date of December 1, 2020 and shall then renew itself without change until the date by which each succeeding twelve (12) month period thereafter is completed ("Subsequent Amendable Dates"), unless written notice of intended change is served in accordance with Section 6, Title I, of the RLA, as amended, by either party hereto at least one hundred eighty (180) days prior to the Initial Amendable Date or Subsequent Amendable Dates. This language is substantially similar to other contracts made under the RLA. See, ~' Trans World Airlines, Inc. v. Indep. Fed'n of Flight Attendants, 809 F.2d 483, 484 (8th Cir. 1987) aff d mem. by an equally divided Court 485 U.S. 175 (1988) (per curiam) (quoting a duration clause in an RLA contract); Airline Pilots Ass'n, Int'l v. Pan Am. World Airways, Inc., 765 F.2d 377, 379 (2nd. Cir. 1985) (same). Notably, American's grievance echoed the JCBA's duration language in seeking "a declaratory judgment from the Board that that the Association is violating the parties' agreement and also a cease and desist order prohibiting the Association from seeking to accrete these employees until and unless the CBA is changed on this issue pursuant to Section 6 of the RLA." (emphasis added). Thus, where the obligation of the union not to seek to organize certain employees found in Briggs Indiana applied for one year and the longest any such promise contained in an NLRA contract could last would be three years, any such promise in an RLA contract could be in place until the parties negotiate new language- indefinitely. A more significant difference between the statutes concerns the statutes' different approaches to bargaining units which affects the employees' option to seek representation through a different union. As the NLRB reasoned in Briggs Indiana, the employees in question were not losing all rights to representation, merely the option to be represented by one particular union. 63 NLRB at 1272. Under the NLRA, the unrepresented employees are not obliged to be part of the existing bargaining unit. The NLRB' s general rule is that the unit need only be 38 Case 1:16-cv-01630-RDM Document 18-1 Filed 01/25/17 Page 38 of 41 appropriate, not the most appropriate. See Overnite Transp. Co., 322 NLRB 723, 723-24 (1996) ("The Board, however, does not compel a petitioner to seek any particular appropriate unit."). "Congress chose not to enact a general rule that would require plant unions, craft unions, or industry-wide unions for every employer in every line of commerce, but also chose not to leave the decision up to employees or employers alone. Instead, the decision 'in each case' in which a dispute arises is to be made by the Board." American Hosp.Ass'n v. N.L.R.B., 499 U.S. 606, 611 (1991) (holding as not facially invalid a rule promulgated by the NLRB providing that, with certain exceptions, eight, and only eight, defined employee units are appropriate for collective bargaining in acute care hospitals). American Hosp. Ass'n v. N.L.R.B. is particularly instructive here as it concerns a challenge to an NLRB rule concerning appropriate collective bargaining units in acute care hospitals. Id. The decision's discussion illustrates how unusual it was for the NLRB to issue an industry-wide rule delineating the appropriate bargaining units. Id. at 609-14. In comparison Section 2, Fourth and Section 2, Ninth of the RLA both provide for representation of employees in a "craft or class." The NMB consistently interprets this term to require craft or classes that apply on a "systemwide" basis, covering all employees working in a particular kind of job throughout the nation, rather than on a shop-by-shop or regional basis. See Switchmen's Union v. NMB, 135 F.2d 785 (D.C. Cir. 1943) (discussing the legislative history of the RLA); see also Delta Air Lines Global Svcs., 25 NMB 456,460 (2001 ); American Eagle, 28 NMB 371, 381 (2001); LSG Lufthansa Servs., 25 NMB 96 (1997);Varig Airlines, 10 NMB 223 (1983). Due to the RLA's requirement for system-wide bargaining units, the employees in question, if they are Passenger Service Employees, cannot seek representation from another union. The NMB has certified the Association as the representative of the Passenger Service 39 Case 1:16-cv-01630-RDM Document 18-1 Filed 01/25/17 Page 39 of 41 craft or class at American and no other representative may be chosen, nor can there be fracturing of this craft into smaller crafts, such as one representing the employees in question. See M Eastern Air Lines, 12 NMB 34 (1984)(the NMB's "long-standing" policy is "not to fragment traditional employee crafts or classes into smaller sub-groups."); American Airlines, 21 NMB 60, 72 (1993) ("The Board has frequently stated its policy against fragmenting crafts or classes, and, indeed, recognizes that it is not authorized to make a determination for a unit smaller than the entire craft or class"); Southwest Airlines, 42 NMB at 112 (declining to fragment Passenger Service Employees craft or class so that a different union would represent some employees in the craft or class); Galveston Wharves, 4 NMB 200 (1962). Thus, ifthe Association is held to an agreement not to seek to represent these employees, the employees effectively lose their right to representation and to engage in collective bargaining entirely. Thus the two bases on which the NLRB reasoned that the Briggs Indiana doctrine did not violate employees' right to organize rest on elements of the NLRA which are significantly different from the RLA. It would not be appropriate to import the Briggs Indiana doctrine enforcing promises by unions not to seek to represent employees into this RLA case, because the ramifications are significantly different. The employees in question would lose their right to seek representation to a degree not contemplated by the NLRB. The standard for finding any waiver by an RLA union to seek to represent a group of employees should be even stricter than that imposed by the NLRB, if one can be found at all. CONCLUSION As demonstrated above, there is no material issue in dispute and the Plaintiff Association is entitled to judgment in its favor as a matter oflaw. Accordingly, the Association respectfully 40 Case 1:16-cv-01630-RDM Document 18-1 Filed 01/25/17 Page 40 of 41 requests that the Court hold that the System Board exceeded its authority and violated the Railway Labor Act, and on that basis vacate its unlawful Opinion and Award. Dated: January 25, 2017 Respectfully submitted, s/ Deirdre Hamilton Deirdre Hamilton (DC bar number 472334) Nicolas M. Manicone (DC bar number 461172) International Brotherhood of Teamsters 25 Louisiana A venue, NW Washington, DC 20001 Ph: (202) 624-7470 Fax: (202) 624-6884 nmanicone@teamster.org dhamilton@teamster.org 41 Case 1:16-cv-01630-RDM Document 18-1 Filed 01/25/17 Page 41 of 41 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CWA-IBT PASSENGER SERVICE EMPLOYEE ASSOCIATION, 501 Third Street, NW Washington, DC 20001 Plaintiff v. AMERICAN AIRLINES, INC., 4255 Amon Carter Blvd Fort Worth, TX 76155 Defendant Civil Action No.: 1 :16-cv-01630 (RDM) PROPOSED ORDER The Court having granted the motion for summary judgment of Plaintiff CW A-IBT PASSENGER SERVICE EMPLOYEE ASSOCIATION upon the record, and having found there is no genuine issue of material fact as to any claim set forth in Plaintiff's Amended Complaint and therefore Plaintiff is entitled to summary judgment, IT IS HEREBY ORDERED, ADJUDGED AND DECREED, as follows: 1. Judgment is ordered in favor of Plaintiff CWA-IBT PASSENGER SERVICE EMPLOYEE ASSOCIATION and against Defendant AMERICAN AIRLINES, INC. on all claims and causes of action alleged in the Amended Complaint. 2. The Opinion and Award of the American Airlines System Board of Adjustment is vacated. DATED: -------- THE HON. RANDOLPH D. MOSS United States District Judge Case 1:16-cv-01630-RDM Document 18-2 Filed 01/25/17 Page 1 of 1