Although petitioner airline (TWA) and respondent flight
attendants' union (IFFA) pursued all the required dispute
resolution mechanisms of the Railway Labor Act (RLA), their
negotiations over a new collective bargaining agreement were
unsuccessful. The parties bargained over wages and working
conditions, but not over the existing agreement's seniority system,
which ensured that the most senior qualified attendant who bid on a
vacant job assignment, flight schedule, or base of operation
(domicile) would obtain it, and would be least affected by periodic
furloughs. During the IFFA's subsequent strike, TWA continued
operations by hiring permanent replacements for strikers, by
continuing to employ attendants who chose not to strike, and by
rehiring strikers who abandoned the strike, and filled
strike-created vacancies by application of the existing seniority
bidding system to all working attendants. After the strike ended,
and pursuant to its preannounced policy, TWA refused to displace
permanent replacements or junior nonstriking attendants
("crossover" employees) with senior full-term strikers, many of
whom were therefore left without an opportunity to return to work.
Although a post-strike arbitral agreement guaranteed that all
reinstated full-term strikers would be returned to work as
vacancies arose and with precisely the seniority they would have
had if no strike had occurred, the IFFA filed the instant action
contending that, even assuming the strike was economic, the
full-term strikers were entitled to displace the newly hired
replacements and the less senior crossover attendants either under
the terms of the prestrike collective bargaining agreement or under
the RLA itself. The District Court denied relief for the most part,
but the Court of Appeals, relying on its reading of the pre-strike
agreement and on judicial interpretation of the National Labor
Relations Act (NLRA), reversed the lower court's ruling that the
more senior full-term strikers could not displace junior
crossovers.
Held: An employer is not required by the RLA to lay off
junior crossover employees in order to reinstate more senior
full-term strikers at the conclusion of a strike. Pp.
489 U. S.
432-443.
(a) Nothing in the federal common labor law developed under the
NLRA, which may provide guiding precedent in RLA cases, indicates
that TWA's crossover policy is unlawful. In fact, under
NLRB v.
Page 489 U. S. 427
Mackay Radio & Telegraph Co., 304 U.
S. 333, and its progeny, it is not an unfair labor
practice under the NLRA for an employer to refuse to discharge
replacement employees in order to make room for strikers at the end
of an economic strike. The IFFA's argument that the
Mackay
Radio rule is inapplicable to junior crossovers, because those
workers must be treated differently than newly hired permanent
replacements (who, the union concedes, need not be displaced) is
rejected, since full-term strikers at TWA, once reinstated, have
lost no seniority either in absolute or relative terms, and will be
able to displace junior flight attendants -- whether new hires,
crossovers, or full-term strikers -- with regard to future
reductions in force, vacancies in desirable assignments or
domiciles, or periodic bids on job scheduling, and since any
"cleavage" between junior crossovers and reinstated full-term
strikers is merely the inevitable effect of TWA's lawful use of the
economic weapons available to it during a period of self-help.
NLRB v. Erie Resistor Corp., 373 U.
S. 221, distinguished. To differentiate between
crossovers and new hires in the manner the IFFA proposes would have
the effect of penalizing those who exercised their right not to
strike, which is protected both by the RLA and the NLRA, in order
to benefit those who did strike, a result that is not required by
the NLRA. Pp.
489 U. S.
432-439.
(b) TWA's crossover policy is not forbidden by the RLA itself,
which, in fact, provides greater avenues of self-help to parties
that have exhausted the statute's extensive dispute resolution
mechanisms than would be available under the NLRA. Section 2 Fourth
of the RLA -- which prohibits carriers from "influenc[ing] or
coerc[ing] employees . . . not to join . . . any labor
organization" -- does not prohibit the policy, since that section
is addressed primarily to the precertification rights of
unorganized employees to organize and choose their representatives,
with the intent of protecting the dispute-resolution procedures'
effectiveness by assuring that the employees' putative
representative is not subject to employer control, and that neither
party will be able to enlist the courts to further its own partisan
ends. Where, as here, the parties have exhausted those procedures
and have reached an impasse, they are free, without threat of
judicial involvement, to turn to any peaceful, self-help measures
that do not strike a fundamental blow to union or employer activity
and the collective bargaining process itself. Moreover, as the IFFA
concedes, nothing in the collective bargaining agreement or any
post-strike agreement prohibits TWA's crossover policy. Pp.
489 U. S.
439-442.
(c) TWA's decision to guarantee to crossovers the same
protections lawfully applied to new hires was a decision to apply
the preexisting seniority terms of the collective bargaining
agreement uniformly to all employees. That this decision had the
effect of encouraging pre-strike
Page 489 U. S. 428
workers to remain on the job during the strike or to abandon the
strike before all vacancies were filled was simply an effect of
TWA's lawful exercise of its peaceful economic power. P.
489 U. S.
443.
819 F.2d 839, reversed.
O'CONNOR, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and WHITE, STEVENS, SCALIA, and KENNEDY, JJ.,
joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL,
J., joined,
post, p.
489 U. S. 443.
BLACKMUN, J., filed a dissenting opinion, in Parts I and II of
which BRENNAN, J., joined,
post, p.
489 U. S.
452.
JUSTICE O'CONNOR delivered the opinion of the Court.
We decide today whether, at the end of a strike, an employer is
required by the Railway Labor Act (RLA or Act), 44 Stat. 577,
as amended, 45 U.S.C. § 151
et seq., to displace
employees who worked during the strike in order to reinstate
striking employees with greater seniority.
I
In March, 1984, Trans World Airlines, Inc. (TWA), and the
Independent Federation of Flight Attendants (IFFA or
Page 489 U. S. 429
Union) began negotiations pursuant to § 6 of the RLA, 45 U.S.C.
§ 156, on a new collective bargaining agreement to replace their
prior agreement due to expire on July 31, 1984. The existing
collective bargaining agreement created a complex system of
bidding, the general effect of which was to insure that those
flight attendants with the greatest seniority would have the best
opportunity to obtain their preferred job assignments, flight
schedules, and bases of operation as vacancies appeared, and to
insure that senior flight attendants would be least affected by the
periodic furloughs endemic to the airline industry. Thus, for
example, should a job vacancy appear at the highly desirable Los
Angeles or San Francisco bases of operation or "domiciles," the
most senior qualified flight attendant who bid on such a vacancy
would be entitled to it. Conversely, should a reduction in force
eliminate a position in the Los Angeles domicile, the furloughed
flight attendant could opt to displace the most junior attendant of
equal rank in the entire system or the most junior attendant of
lower rank either at the same domicile or in the entire system.
1981-1984 TWA/IFFA Collective Bargaining Agreement, Arts. 12-13,
18-A, 18-B,
reprinted in App. 31-62.
For two years TWA and the Union unsuccessfully bargained over
wages and working conditions not including the seniority bidding
system. They pursued all the required dispute resolution mechanisms
of the RLA, including direct negotiation, 45 U.S.C. § 152 Second,
mediation, 45 U.S.C. § 155 First, and the final 30-day "cooling
off" period.
Ibid. By early 1986, a strike seemed
imminent, and on March 7, 1986, the Union went out on strike.
TWA informed its flight attendants before and during the strike
that it would continue operations by hiring permanent replacements
for striking flight attendants, by continuing to employ any flight
attendant who chose not to strike, and by rehiring any striker who
abandoned the strike and made an unconditional offer to return to
any available vacancies.
Page 489 U. S. 430
TWA also informed its flight attendants that any vacancies
created as a result of the strike would be filled by application of
the seniority bidding system to all working flight attendants, and
that such job and domicile assignments would remain effective after
the strike ended. App. 120-122, 132-134, 137-139. Thus, at the
conclusion of the strike, senior full-term strikers would not be
permitted to displace permanent replacements or junior nonstriking
flight attendants, and could be left without an opportunity to
return to work. TWA's promise not to displace working flight
attendants after the strike created two incentives specifically
linked to the seniority bidding system: it gave senior flight
attendants an incentive to remain at, or return to, work in order
to retain their prior jobs and domicile assignments; it gave junior
flight attendants an incentive to remain at, or return to, work in
order to obtain job and domicile assignments that were previously
occupied by more senior striking flight attendants.
As promised, TWA continued its operations during the 72-day
strike by utilizing approximately 1,280 flight attendants who
either did not strike or returned to work before the end of the
strike, and by hiring and fully training approximately 2,350 new
flight attendants, some 1,220 of whom were hired during the first
few days of the strike. On May 17, 1986, the Union made an
unconditional offer to TWA on behalf of the approximately 5,000
flight attendants who had remained on strike to return to work. TWA
accepted the offer, but refused the Union's May 27th demand that
TWA displace those pre-strike employees who were working as of May
17 ("crossover" employees). Accordingly, TWA initially recalled
only the 197 most senior full-term strikers to fill available job
and domicile vacancies. By the terms of a post-strike arbitral
agreement, these strikers and all subsequently reinstated full-term
strikers returned to work as vacancies arose, and with precisely
the seniority they would have had if no strike
Page 489 U. S. 431
had occurred. In May, 1988, more than 1,100 full-term strikers
had been reinstated with full seniority.
In an effort to reinstate all the full-term strikers by
displacing the newly hired flight attendants and less senior
crossover employees, the Union proceeded on two fronts. First, it
brought an injunction action alleging that the full-term strikers
were not "economic strikers," but "unfair labor practice strikers"
entitled to reinstatement by application of principles this Court
has developed in interpreting the National Labor Relations Act
(NLRA). 29 U.S.C. § 151
et seq. See Mastro Plastics
Corp. v. NLRB, 350 U. S. 270
(1956). The District Court ultimately ruled against the Union on
this claim.
Independent Federation of Flight Attendants v.
Trans World Airlines, Inc., 682 F.
Supp. 1003 (WD Mo.1988),
appeal pending, No. 88-1984M
(CA8). At the same time, the Union filed the instant action
contending that, even assuming the strike was economic, the
full-term strikers were entitled to reinstatement either under the
terms of the pre-strike collective bargaining agreement or under
the RLA itself. On cross-motions for partial summary judgment, the
District Court held that the full-term strikers were not entitled
to displace either the junior crossovers or the 1,220 new hires
employed by TWA immediately after the strike commenced. (The
motions did not require the District Court to rule on the status of
the remaining new hires.) The District Court also held that 463 new
hires not fully trained by the end of the strike could be displaced
by full-term strikers.
Independent Federation of Flight
Attendants v. Trans World Airlines, Inc., 643 F.
Supp. 470 (WD Mo.1986).
Meanwhile, TWA sought a declaratory judgment that the union
security clause of the pre-strike collective bargaining agreement
containing provisions for the checkoff of union dues and a
requirement that new hires join the Union did not survive the
self-help period after the parties had bargained to impasse. On
cross- motions for summary judgment, the same District Court ruled
that, because the union security clause
Page 489 U. S. 432
was not part of the pre-strike negotiations, it had survived the
strike.
Trans World Airlines, Inc. v. Independent Federation of
Flight Attendants, 640 F.
Supp. 1108 (WD Mo.1986).
Appeals were taken from both judgments. The Court of Appeals
affirmed the District Court's ruling that the union security clause
had survived the period of self-help.
Trans World Airlines,
Inc. v. Independent Federation of Flight Attendants, 809 F.2d
483 (CA8 1987). In a separate opinion, the same panel also affirmed
the District Court's ruling that full-term strikers could not
displace the 1,220 fully-trained new hires, but could displace the
463 untrained new hires.
Independent Federation of Flight
Attendants v. Trans World Airlines, Inc., 819 F.2d 839 (CA8
1987). The Court of Appeals, however, reversed the District Court's
ruling that more senior full-term strikers could not displace
junior crossovers. In so holding, the court relied primarily on its
reading of the union security clause of the pre-strike collective
bargaining agreement and, secondarily, on judicial interpretations
of the NLRA.
Id. at 843-845.
We granted petitions for writs of certiorari in both cases.
Trans World Airlines, Inc. v. Flight Attendants, 482 U.S.
913 (1987) (
TWA I);
Flight Attendants v. Trans World
Airlines, Inc., 485 U.S. 958 (1988) (
TWA II)
(certiorari granted only to consider displacement of crossovers).
Last Term, we affirmed by an equally divided Court the judgment of
the Court of Appeals in
TWA I that the union security
clause survived the strike.
485 U. S. 175
(1988). Today, we reverse the Court of Appeals in
TWA II,
and hold that an employer is not required by the RLA to lay off
junior cross-overs in order to reinstate more senior full-term
strikers at the conclusion of a strike.
II
We have observed in the past that carefully drawn analogies from
the federal common labor law developed under the NLRA may be
helpful in deciding cases under the RLA. Trainmen v. Jacksonville
Terminal Co.,
394 U. S. 369,
394 U. S.
377
Page 489 U. S. 433
(1969). Thus, as in this case, those lower courts that have
examined the reinstatement rights of strikers under the RLA have
turned to NLRA precedents for guidance.
E.g., Air Line Pilots
Assn. International v. United Air Lines, Inc., 614 F.
Supp. 1020, 1041, 1045-1046 (ND Ill.1985),
aff'd in part
and rev'd in part on other grounds, 802 F.2d 886 (CA7 1986),
cert. denied, 480 U.S. 946 (1987);
National Airlines,
Inc. v. International Assn. of Machinists & Aerospace
Workers, 416 F.2d 998, 1004-1006 (CA5 1969).
We first considered the reinstatement rights of strikers under
the NLRA in
NLRB v. Mackay Radio & Telegraph Co.,
304 U. S. 333
(1938). In
Mackay Radio, radio and telegraph operators
working in the San Francisco offices of a national
telecommunications firm went on strike. In order to continue
operations, the employer brought employees from its other offices
to fill the strikers' places. At the conclusion of the strike, the
striking operators sought to displace their replacements in order
to return to work. We held that it was not an unfair labor practice
under § 8 of the NLRA for the employer to have replaced the
striking employees with others "in an effort to carry on the
business," or to have refused to discharge the replacements in
order to make room for the strikers at the conclusion of the
strike.
Id. at
304 U. S.
345-346. As we there observed,
"[t]he assurance by [the employer] to those who accepted
employment during the strike that, if they so desired, their places
might be permanent was not an unfair labor practice, nor was it
such to reinstate only so many of the strikers as there were vacant
places to be filled."
Id. at
304 U. S. 346.
On various occasions, we have reaffirmed the holding of
Mackay
Radio.
See NLRB v. Erie Resistor Corp., 373 U.
S. 221,
373 U. S. 232
(1963) ("We have no intention of questioning the continuing
vitality of the
Mackay rule . . .");
NLRB v. Fleetwood
Trailer Co., 389 U. S. 375,
389 U. S. 379
(1967) (Employers have "
legitimate and substantial business
justifications' for refusing to reinstate employees who engaged in
an economic strike . . . when the jobs claimed by the
Page 489 U. S.
434
strikers are occupied by workers hired as permanent
replacements during the strike in order to continue operations");
Belknap, Inc. v. Hale, 463 U. S. 491,
463 U. S. 504,
n. 8 (1983) ("The refusal to fire permanent replacements because of
commitments made to them in the course of an economic strike
satisfies the requirement . . . that the employer have a
`legitimate and substantial justification' for its refusal to
reinstate strikers").
TWA asks us to apply this line of cases decided under the NLRA
to determine the status under the RLA of those pre-strike flight
attendants who were working at the conclusion of the strike. TWA
argues that it would be completely anomalous to hold that full-term
strikers may displace junior crossovers when, as the Union has
conceded, they may not displace newly hired permanent replacements
under either statute. The Union, by contrast, argues that the rule
of
Mackay Radio is inapplicable to junior crossovers,
because of differences between the RLA and the NLRA and because,
even under the NLRA, junior crossovers would be treated differently
from newly hired permanent replacements. [
Footnote 1]
The Union relies on
Erie Resistor, supra, to
distinguish junior crossovers from new hires under the NLRA. In
Erie Resistor, we struck down an employer's award of 20
years' superseniority to new hires and crossovers as an unfair
labor practice within the meaning of § 8(a)(1) and § 8(a)(3) of the
NLRA. 29 U.S.C. §§ 158(a)(1), 158(a)(3). We observed:
". . . Super-seniority affects the tenure of all strikers,
whereas permanent replacement, proper under
Mackay,
affects only those who are, in actuality, replaced. It is
Page 489 U. S. 435
one thing to say that a striker is subject to loss of his job at
the strike's end, but quite another to hold that, in addition to
the threat of replacement, all strikers will, at best, return to
their jobs with seniority inferior to that of the replacements and
of those who left the strike."
"
* * * *"
". . . Unlike the replacement granted in
Mackay, which
ceases to be an issue once the strike is over, the
[super-seniority] plan here creates a cleavage in the plant
continuing long after the strike is ended. Employees are henceforth
divided into two camps: those who stayed with the union and those
who returned before the end of the strike, and thereby gained extra
seniority. This breach is reemphasized with each subsequent layoff,
and stands as an ever-present reminder of the dangers connected
with striking, and with union activities in general."
373 U.S. at
373 U. S.
230-231.
The Union does not, and cannot, contend that reinstated
full-term strikers have less seniority relative to new hires and
junior crossovers than they would have had if they had not remained
on strike. It is clear that reinstated full-term strikers lost no
seniority, either in absolute or relative terms. Thus, unlike the
situation in
Erie Resistor, any future reductions in force
at TWA will permit reinstated full-term strikers to displace junior
flight attendants exactly as would have been the case in the
absence of any strike. Similarly, should any vacancies develop in
desirable job assignments or domiciles, reinstated full-term
strikers who have bid on those vacancies will maintain their
priority over junior flight attendants, whether they are new hires,
crossovers, or full-term strikers. In the same vein, periodic bids
on job scheduling will find senior reinstated full-term strikers
maintaining their priority over all their junior colleagues. In
short, once reinstated, the seniority of full-term strikers is in
no way affected by their decision to strike.
Page 489 U. S. 436
Nevertheless, IFFA argues that TWA's refusal to displace junior
crossovers will create a "cleavage" between junior crossovers and
reinstated full-term strikers at TWA "long after the strike is
ended."
Id. at
373 U. S. 231.
This is the case because desirable job assignments and domiciles
that would have been occupied by the most senior flight attendants
had there been no strike will continue to be held by those who did
not see the strike through to its conclusion. For example, the
senior full-term striker who worked in the Los Angeles domicile
before the strike may have been replaced by a junior crossover. As
post-strike vacancies develop in TWA's workforce, permitting
reinstatement of full-term strikers, they are not likely to occur
in the most desirable domiciles. Thus, it is unlikely that the
senior full-term striker would be reinstated back to her preferred
domicile. Resentful rifts among employees will also persist after
the strike, the Union argues, because TWA's pre-strike assurance of
nondisplacement to junior crossovers, unlike the same assurance to
new hires,
"set up a competition among those individuals who participated
in the original decision to strike, and thereby undermined the
group's ability to take the collective action that it is the very
purpose of the [RLA] to protect."
Brief for Respondent 36-37.
We reject this effort to expand
Erie Resistor. Both the
RLA and the NLRA protect an employee's right to choose not to
strike. 45 U.S.C. § 152 Fourth; 29 U.S.C. § 157, and, thereby,
protect employees' rights to "the benefit of their individual
decisions not to strike. . . ."
Post at
489 U. S. 448,
n. 4 (BRENNAN, J., dissenting). [
Footnote 2] Accordingly, in virtually
Page 489 U. S. 437
every strike situation, there will be some employees who
disagree with their union's decision to strike and who cannot be
required to abide by that decision. It is the inevitable effect of
an employer's use of the economic weapons available during a period
of self-help that these differences will be exacerbated, and that
post-strike resentments may be created. Thus, for example, the
employer's right to hire permanent replacements in order to
continue operations will inevitably also have the effect of
dividing striking employees between those who, fearful of
permanently losing their jobs, return to work, and those who remain
stalwart in the strike. In such a situation, apart from the
"pressure on the strikers as a group to abandon the strike," to
which the dissent refers,
post at
489 U. S. 449
(BRENNAN, J., dissenting), a "competition" may arise among the
striking employees to return to work in order to avoid being
displaced by a permanent replacement. Similarly, employee awareness
that an employer may decide to transfer working employees to
necessary positions previously occupied by more senior striking
employees will isolate employees fearful of losing those positions
and employees coveting those positions from employees more
committed to the strike. Conversely, a policy such as TWA employed
here, in creating the incentive for individual strikers to return
to work, also "puts pressure on the strikers as a group to abandon
the strike,"
ibid., in the same manner that the hiring of
permanent replacements does.
None of these scenarios, however, present the prospect of a
continuing diminution of seniority upon reinstatement at the end of
the strike that was central to our decision in
Erie
Resistor. All that has occurred is that the employer has
filled vacancies created by striking employees. Some of these
vacancies will be filled by newly hired employees, others by
doubtless more experienced and therefore more needed employees who
either refused to strike or abandoned the strike. The dissent's
observation that, "at the conclusion of the strike," discrimination
in the filling of "available
Page 489 U. S. 438
positions" based on union activity is impermissible is beside
the point.
See post at
489 U. S. 450
(BRENNAN, J., dissenting). The positions occupied by newly hired
replacements, employees who refused to strike, and employees who
abandoned the strike are simply not "available positions" to be
filled. As noted above, those positions that were available at the
conclusion of the strike were filled "according to some principle,
such as seniority, that is neutral. . . ."
Post at
489 U. S. 450
(BRENNAN, J., dissenting). That the prospect of a reduction in
available positions may divide employees and create incentives
among them to remain at work or abandon a strike before its
conclusion is a secondary effect fairly within the arsenal of
economic weapons available to employers during a period of
self-help.
To distinguish crossovers from new hires in the manner IFFA
proposes would have the effect of penalizing those who decided not
to strike in order to benefit those who did. Because permanent
replacements need not be discharged at the conclusion of a strike
in which the union has been unsuccessful, a certain number of
pre-strike employees will find themselves without work. We see no
reason why those employees who chose not to gamble on the success
of the strike should suffer the consequences when the gamble proves
unsuccessful. Requiring junior crossovers, who cannot themselves
displace the newly hired permanent replacements, and "who rank
lowest in seniority,"
post at
489 U. S. 447
(BRENNAN, J., dissenting), to be displaced by more senior full-term
strikers is precisely to visit the consequences of the lost gamble
on those who refused to take the risk. While the employer and
union, in many circumstances, may reach a back-to-work agreement
that would displace crossovers and new hires, or an employer may
unilaterally decide to permit such displacement, nothing in the
NLRA or the federal common law we have developed under that statute
requires such a result. That such agreements are typically one mark
of a successful strike is yet another indication that crossovers
opted not to
Page 489 U. S. 439
gamble; if the strike was successful, the advantage gained by
declining to strike disappears.
III
The Union argues, however, that whether or not the NLRA
prohibits a crossover policy such as TWA's, the statutory framework
of the RLA forbids such a policy.
Although we have observed that the NLRA may provide useful
analogies for interpreting the RLA, we have also emphasized that
the NLRA
"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."
Trainmen v. Jacksonville Terminal, 394 U.S. at
394 U. S. 383.
Thus, in
Trainmen itself, we declined to examine the
"panoply of detailed law developed" under the NLRA to determine
what kind of secondary picketing in a railway dispute may be
enjoined by state courts. Rather, we held that Congress had
entirely withdrawn such injunctive power from the States:
"[P]arties who have unsuccessfully exhausted the Railway Labor
Act's procedures for resolution of a major dispute . . . [may]
employ the full range of whatever peaceful economic power they can
muster, so long as its use conflicts with no other obligation
imposed by federal law."
Id. at
394 U. S.
391-392. Similarly, two Terms ago, in
Burlington
Northern R. Co. v. Maintenance of Way Employes, 481 U.
S. 429 (1987), we declined to find in the RLA an implied
limit on a union's resort to secondary activity by analogy to the
NLRA. These cases have read the RLA to provide greater avenues of
self-help to parties that have exhausted the statute's "virtually
endless,"
id. at
481 U. S. 444,
dispute resolution mechanisms than would be available under the
NLRA. Nevertheless, they 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
Page 489 U. S. 440
muster,"
Trainmen, supra, at
394 U. S. 392,
beyond the limitations even imposed by the NLRA. This we decline to
do.
The Union points to § 2 Fourth of the RLA as the source of this
limitation on the use of the employer's economic power. The section
provides, in pertinent part:
"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 their choice, 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. . . ."
45 U.S.C. § 152 Fourth. The Union argues that TWA's crossover
policy, which created an incentive for flight attendants either not
to join or to abandon the strike, constituted influence or coercion
in an effort to induce the flight attendants not to remain members
of IFFA, and was, therefore, impermissible under § 2 Fourth.
Section 2 Fourth was enacted as part of the 1934 amendments to
the RLA. 48 Stat. 1185. From the time of our very first opportunity
to interpret the 1934 amendments, we have viewed them as addressing
primarily the precertification rights and freedoms of unorganized
employees. In
Virginian R. Co. v. Railway Employees,
300 U. S. 515
(1937), we observed that the employees' freedom
"to organize and to make choice of their representatives without
the 'coercive interference' and 'pressure' of a company union . . .
was continued and made more explicit by the amendment of 1934."
Id. at
300 U. S. 543,
citing § 2 Third, § 2 Fourth, and
Texas & N. O. R. Co. v.
Railway Clerks, 281 U. S. 548
(1930). In
Switchmen v. National Mediation Bd.,
320 U. S. 297
(1943), the Court divided over whether the federal courts have
jurisdiction under § 2 Fourth to review a certification of union
representatives for collective bargaining by the National Mediation
Board acting under § 2 Ninth of the RLA as amended in 1934. Both
the majority and the dissent agreed, however, that
Page 489 U. S. 441
"[t]he 1934 Act was directed particularly at control over the
initial step in collective bargaining -- the determination of the
employees' representatives."
Id. at
320 U. S. 317
(Reed, J., dissenting);
see also id. at 302 (opinion of
the Court);
Machinists v. Street, 367 U.
S. 740,
367 U. S. 759
(1961).
The explanation for the precertification focus of the 1934
amendments is clear. The RLA provides an exhaustively detailed
procedural framework "to facilitate the voluntary settlement of
major disputes."
Trainmen v. Jacksonville Terminal, supra,
at
394 U. S. 378.
The effectiveness of these private dispute resolution procedures
depends on the initial assurance that the employees' putative
representative is not subject to control by the employer, and on
the subsequent assurance that neither party will be able to enlist
the courts to further its own partisan ends.
See Chicago &
N.W. R. Co. v. Transportation Union, 402 U.
S. 570,
402 U. S.
596-597 (1971) (BRENNAN, J., dissenting) (the duty to
exhaust the dispute resolution procedures "does not contemplate
that governmental power should, after failure of the parties to
reach accord, be added to the scales in favor of either party, and
thus compel the other to agree upon the aided party's terms.
Rather, at that point, impasse was to free both parties to resort
to self-help");
Burlington Northern, supra, at
481 U. S.
451-452 (the availability of self-help measures, rather
than judicial remedies, "may increase the effectiveness of the RLA
in settling major disputes by creating an incentive for the parties
to settle prior to exhaustion of the statutory procedures"). 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 Railway Labor Act."
Switchmen, supra, at
320 U. S. 300;
Chicago & N.W. R. Co., supra, at
402 U. S. 595
(BRENNAN, J., dissenting) ("The underlying cohesiveness of the
decisions [permitting judicial interference] lies in the fact that,
in each instance, the scheme of the Railway Labor Act could not
begin to work without judicial involvement").
Page 489 U. S. 442
Here, TWA and the Union followed without interference the scheme
of the RLA to an unsuccessful conclusion, and then turned to
self-help. We have more than once observed 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."
Trainmen, 394 U.S. at
394 U. S. 391;
Burlington Northern, supra, at
481 U. S.
447-448. Such silence does not amount to a congressional
imprimatur on all forms of post-negotiation self-help. It
does, however, 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. Accordingly, just as we saw no statutory
basis for limiting the secondary activities of unions during a
period of self-help in
Trainmen and
Burlington
Northern, we see no basis in § 2 Fourth for prohibiting the
crossover policy employed by TWA once bargaining had reached an
impasse. Both self-help measures fall squarely within the "full
range of whatever peaceful economic power [the parties] can muster"
once they have "unsuccessfully exhausted the Railway Labor Act's
procedures for resolution of a major dispute. . . . "
Trainmen,
supra, at
394 U. S. 392.
Neither measure prevented the scheme of the RLA from working;
neither measure was inherently destructive of union or employer
activity. Similarly, we see nothing in
Railway Clerks v.
Florida East Coast R. Co., 384 U. S. 238
(1966), so heavily relied upon by the Union, that is to the
contrary. In
Florida East Coast, we recognized a carrier's
ability to depart from the terms of an existing collective
bargaining agreement when reasonably necessary to operate during a
strike. As the Union itself concedes,
see n 1,
supra, nothing in the
collective bargaining agreement or any post-strike agreement
between TWA and IFFA prohibits the crossover policy adopted by TWA.
Thus, there was no departure from the collective bargaining
agreement that would require an examination of reasonable
necessity.
Page 489 U. S. 443
IV
Neither the RLA itself nor any analogies to the NLRA indicate
that the crossover policy adopted by TWA during the period of
self-help was unlawful. Rather, the decision to guarantee to
crossovers the same protections lawfully applied to new hires was a
simple decision to apply the preexisting seniority terms of the
collective bargaining agreement uniformly to all working employees.
That this decision had the effect of encouraging pre-strike workers
to remain on the job during the strike or to abandon the strike and
return to work before all vacancies were filled was an effect of
the exercise of TWA's peaceful economic power, a power that the
company was legally free to deploy once the parties had exhausted
the private dispute resolution mechanisms of the RLA. Accordingly,
the judgment of the Court of Appeals is
Reversed.
[
Footnote 1]
The Union has abandoned as irrelevant arguments that persuaded
the Court of Appeals below, based on its holding in
TWA I,
that the union security clause of the pre-strike collective
bargaining agreement had survived the strike. Brief for Respondent
4, n. 6. We agree that this concession by the Union is proper.
Nothing in the pre-strike collective bargaining agreement
guaranteed reinstatement of striking flight attendants to positions
occupied by junior crossovers.
[
Footnote 2]
Our affirmance in
TWA I of the judgment that the union
security clause sanctioned by 45 U.S.C. § 152 Eleventh survived the
strike means that crossover and new hires continue to bear the
burden of paying union dues. Free-riding on the benefits that may
come to these employees as a result of IFFA's status as the flight
attendants' exclusive bargaining representative is thereby
foreclosed.
See Machinists v. Street, 367 U.
S. 740,
367 U. S.
760-762 (1961).
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins,
dissenting.
The issue in this case is whether under the Railway Labor Act
(RLA) an employer, in allocating available jobs among members of a
bargaining unit at the conclusion of a strike, may discriminate
against full-term strikers by giving preference to employees who
crossed the picket line to return to work before the strike was
over. Because I conclude that such discrimination on the basis of
union activity is "inherently destructive" of the right to strike,
as guaranteed by both the RLA and the National Labor Relations Act
(NLRA), I dissent.
I
Notwithstanding the Court's suggestion that the portion of the
RLA at issue here addresses "primarily" the precertification
context,
ante at 440, it should be clear that, under the
RLA, an employee's right to strike is protected against coercion by
her employer. The Court relies in part on
Trainmen
Page 489 U. S. 444
v. Jacksonville Terminal Co., 394 U.
S. 369 (1969), but it overlooks the clear teaching of
that case:
"[E]mployees subject to the Railway Labor Act enjoy the right to
engage in primary strikes over major disputes. . . . Whether the
source of this right be found in a particular provision of the
Railway Labor Act or in the scheme as a whole, it is integral to
the Act."
Id. at
394 U. S.
384-385 (footnote omitted). The "particular provision,"
we made clear, was § 2 Fourth.
Id. at
394 U. S. 385,
n. 20. While the issue in
Jacksonville Terminal was the
extent of a state court's power to issue an antistrike injunction,
we emphasized that the RLA's guarantee of the right to strike was
not limited to the context of interference by the State: "However,
§ 2 Fourth of the RLA, added in 1934, was designed primarily, if
not exclusively, to prohibit
coercive employer practices."
Ibid. (emphasis added). Whatever may have been the
"primary" purpose of § 2 Fourth, it is too late in the day to
suggest that this provision, at least when read in the context of
the entire RLA, does not prohibit employer coercion of the right to
strike.
The Court compounds its error in regard to the reach of § 2
Fourth with a more fundamental mistake when it appears to assume
that the employer's action in this case is sanctioned by the mere
fact that it occurred during the "self-help" stage of the dispute.
Ante at
489 U. S.
440-442. Clearly this cannot be the case. I am confident
that the Court would agree, for example, that an employer could not
legally
discharge striking employees under the RLA. But if
this is so, it must be because the RLA contains some injunction
against employer interference with the right to strike, even when
that interference consists of actions taken during the period of
permissible self-help. Thus, the question is not whether the RLA
protects the right to strike against employer coercion -- for it
surely does -- but whether that protection goes so far as to
prohibit the specific employer practice at issue here.
Page 489 U. S. 445
The key to this case is a fundamental command of the RLA and the
NLRA alike, which, in the case of the RLA, is textually anchored in
§ 2 Fourth: the employer may not engage in discrimination among its
employees -- whether at the pre-certification stage, the bargaining
stage, or during or after a strike -- on the basis of their degree
of involvement in protected union activity such as a strike.
[
Footnote 2/1] This case thus falls
within the class of cases in which judicial intervention to enforce
the right at issue is justified because "the scheme of the Railway
Labor Act could not begin to work without judicial involvement."
Chicago & N.W. R. Co. v. Transportation Union,
402 U. S. 570,
402 U. S. 595
(1971) (BRENNAN, J., dissenting). The "central theme" of the RLA
is, of course, "to bring about voluntary settlement."
Ibid. But
"unless the unions fairly represented all of their employees;
unless the employer bargained with the certified representative of
the employees; unless the
status quo was maintained during
the entire range of bargaining, the statutory mechanism could not
hope to induce a negotiated settlement."
Ibid. The same is true here: the statutory scheme would
be just as incapable of bringing about a negotiated settlement if
the employer, in the name of "self-help," impermissibly retaliated
against employees because of their exercise of their right under
the RLA to engage in protected union activity such as a strike.
[
Footnote 2/2]
II
A
That the RLA broadly enjoins discrimination against strikers
does not necessarily settle the issue, of course. In the context of
the NLRA, we have on occasion found reason to
Page 489 U. S. 446
make an exception to that statute's nondiscrimination provision
in the name of the employer's "necessity."
See NLRB v. Mackay
Radio & Telegraph Co., 304 U. S. 333
(1938). The RLA itself provides little guidance as to whether the
employer is in any way privileged, in allocating jobs at the end of
a strike, to give preference to bargaining unit members who crossed
the picket line to return to work. As we have previously noted,
"the Act is wholly inexplicit as to the scope of allowable
self-help."
Jacksonville Terminal, 394 U.S. at
394 U. S.
391.
While, of course, "the National Labor Relations Act cannot be
imported wholesale into the railway labor arena,"
id. at
383, we have frequently "referred to the NLRA for assistance in
construing the Railway Labor Act."
Ibid. Given the paucity
of RLA precedent on the specific issue before us, the Court quite
properly looks to the NLRA for guidance.
Ante at
489 U. S.
432-439. It arrives at an incorrect conclusion, however,
because it mischaracterizes the employer's action and because it
appears unwilling to take seriously the protection Congress has
seen fit to afford to the right to strike.
The Court's conception of this case is most clearly expressed in
a key paragraph that summarizes its discussion of the NLRA case
law:
"To distinguish crossovers from new hires in the manner IFFA
proposes would have the effect of penalizing those who decided not
to strike in order to benefit those who did. . . . We see no reason
why those employees who chose not to gamble on the success of the
strike should suffer the consequences when the gamble proves
unsuccessful. Requiring junior crossovers . . . to be displaced by
more senior full-term strikers is precisely to visit the
consequences of the lost gamble on those who refused to take the
risk."
Ante at
489 U. S. 438.
This understanding of the Union's position contains a factual and a
legal error, both of which infect the Court's analysis of the
case.
Page 489 U. S. 447
In the first place, refusing to discriminate in favor of
crossovers is not to visit the consequences of the lost strike on
"those who refused to take the risk," but rather on those who rank
lowest in seniority. Whether a given flight attendant chose to take
the risk of the strike or not is wholly immaterial. Rather -- as is
virtually universally the case when work-force reductions are
necessary for whatever reason in a unionized enterprise -- it is
the most junior employees, whether strikers or crossovers, who are
most vulnerable. This is precisely the point of seniority.
More fundamental, I fear, is the legal mistake inherent in the
Court's objection to "penalizing those who decided not to strike in
order to benefit those who did." The Court, of course, does
precisely the opposite: it allows TWA to single out for penalty
precisely those employees who were faithful to the strike until the
end, in order to benefit those who abandoned it. What is
unarticulated is the Court's basis for choosing one position over
the other. If, indeed, one group or the other is to be "penalized,"
[
Footnote 2/3] what basis does the
Court have for determining that it should be those who remained on
strike, rather than those who returned to work? I see none, unless
it is perhaps an unarticulated hostility toward strikes. In any
case, the NLRA does provide a basis for resolving this question. It
requires simply that, in making post-strike reinstatements, an
employer may not discriminate among its employees on account of
their union activity. That, in fact, is the
holding of
NLRB v. Mackay Radio, supra, at
403 U. S. 346
-- the more familiar teaching as to the employer's right to hire
permanent replacements having been dictum. If an employer may not
discriminate -- in either direction -- on the basis of the
employee's strike activity, then it follows that the employer must
make decisions about which employees to reinstate on
Page 489 U. S. 448
the basis of some neutral criterion, such as seniority. That is
precisely what the Union asks. [
Footnote 2/4]
B
We have recognized only a narrow exception to the general
principle prohibiting discrimination against employees for
exercising their right to strike. Since
Mackay Radio, it
has been accepted that an employer may hire "permanent
replacements" in order to maintain operations during a strike, and
that these replacements need not be displaced to make room for
returning strikers. The question here is whether the
Mackay exception should be expanded to cover the present
case, involving as it does members of the striking bargaining unit
who have crossed the picket lines, rather than new hires from
outside the bargaining unit. Despite the superficial similarity
between the two situations, strong reasons counsel against applying
the
Mackay rule to crossover employees.
The employer's promise to members of the bargaining unit that
they will not be displaced at the end of a strike if they
Page 489 U. S. 449
cross the picket lines addresses a far different incentive to
the bargaining unit members than does the employer's promise of
permanence to new hires. The employer's threat to hire permanent
replacements from outside the existing workforce puts pressure on
the strikers
as a group to abandon the strike before their
positions are filled by others. But the employer's promise to
members of the striking bargaining unit that, if they abandon the
strike (or refuse to join it at the outset), they will retain their
jobs at strike's end in preference to more senior workers who
remain on strike produces an additional dynamic: now there is also
an incentive for
individual workers to seek to save (or
improve) their own positions at the expense of other members of the
striking bargaining unit. We have previously observed that offers
of
"individual benefits to the strikers to induce them to abandon
the strike . . . could be expected to undermine the strikers'
mutual interest and place the entire strike effort in
jeopardy."
NLRB v. Erie Resistor Corp., 373 U.
S. 221,
373 U. S.
230-231 (1963). Such a "divide and conquer" tactic thus
"strike[s] a fundamental blow to union . . . activity and the
collective bargaining process itself."
Ante at
489 U. S.
442.
In
Erie Resistor, we found the employer's offer of
super-seniority to new hires and crossovers to be "inherently
destructive" of the right to strike, and therefore in contravention
of §§ 8(a)(1) and (a)(3) of the NLRA. 373 U.S. at
373 U. S.
231-232. In my view, the same conclusion should apply
here. Beyond its specific holding outlawing super-seniority, I read
Erie Resistor to stand for the principle that there are
certain tools an employer may not use, even in the interest of
continued operations during a strike, and that the permissibility
of discriminatory measures taken for that purpose must be evaluated
by weighing the "necessity" of the employer's action
(
i.e., its interest in maintaining operations during the
strike) against its prejudice to the employees' right to strike.
[
Footnote 2/5] It
Page 489 U. S. 450
seems clear to me that, in this case, the result of such an
analysis should be to forbid the employer from giving preferential
treatment to crossovers, because of the destructive impact of such
an action on the strikers' mutual interest. Thus, when an employer
recalls workers to fill the available positions at the conclusion
of a strike, it may not discriminate against either the strikers or
the crossovers. Rather, it must proceed according to some
principle, such as seniority, that is neutral as between them.
[
Footnote 2/6] That TWA failed to
do. [
Footnote 2/7]
Page 489 U. S. 451
III
Precedent under the NLRA clearly forbids an employer from
burdening the right to strike in the manner TWA has done in this
case, and I see no reason why that conclusion should not apply
equally under the RLA.
In a case like this, it is not difficult to conjure up a parade
of horribles to support either position. Forbidding an employer to
discriminate in favor of crossovers, as I would do, makes it
impossible for a junior employee who does not want to strike, and
who is unable to persuade a majority of her colleagues to adopt
that stance, to be sure that she can save her job. But that
employee is in the same position she would be in if a layoff were
necessary for other reasons beyond her control, such as an economic
downturn. The principle of seniority is based on the notion that it
is those employees who have worked longest in an enterprise, and
therefore have most at stake, whose jobs should be most protected.
Permitting the employer to give preference to crossovers, as the
Court today does, will mean that an employee of only six months'
experience, who abandoned the strike one day before it ended, could
displace a 20-year veteran who chose to remain faithful to the
decision made collectively with her fellow workers until the group
as a whole decided to end the strike. Unfortunately there will be
individual injustices whichever
Page 489 U. S. 452
rule we adopt. I would favor -- and I believe Congress has
provided for -- the rule that errs on the side of preferring
solidarity and seniority, rather than a rule that would permit the
employer to discriminate on the basis of protected union
activity.
[
Footnote 2/1]
We have noted that § 2 Fourth is "comparable" to § 7 of the
NLRA, which protects the right to engage in concerted activities.
Trainmen v. Jacksonville Terminal Co., 394 U.
S. 369,
394 U. S. 385,
n. 20 (1969).
[
Footnote 2/2]
It is particularly difficult to discern any reason why judicial
intervention should be necessary to enforce a union's duty of fair
representation under the RLA,
see Steele v. Louisville &
Nashville R. Co., 323 U. S. 192
(1944), but not an employer's duty to refrain from discrimination
based on union activity.
[
Footnote 2/3]
Of course, as explained in the preceding paragraph, the position
the Union advocates does not "penalize" any employee on the basis
of her decision to strike or not to strike.
[
Footnote 2/4]
That some crossovers, like some strikers -- in both cases the
most junior members of the workforce -- may lose their jobs because
of the collective decision to strike is simply a reflection of the
employer's right to hire "permanent replacements," or perhaps of a
downturn in business due to the strike or other factors. The
Court's argument that the crossovers should not be "penalized"
rests on its apparent belief that they should not be denied the
benefit of their individual decisions not to strike (although it
should be noted that the Court apparently objects to "penalizing"
even those crossovers who voted for the strike, as long as they
repented of that decision before the strike ended). But "[u]nion
activity, by its very nature, is group activity,"
NLRB v.
Textile Workers, 409 U. S. 213,
409 U. S. 221
(1972) (BLACKMUN, J., dissenting), and inherent in the system of
exclusive bargaining representatives, which is a fundament of our
labor law, is the principle of majority decision -- even where such
decisions may impose costs on the dissenting minority. The contrary
rule, moreover, would allow the employee who abandons the
collectively taken decision to strike to become a free rider,
enjoying the benefit of any gains won by the strike, but without
sharing in its risk.
See Pattern Makers v. NLRB,
473 U. S. 95,
473 U. S. 129
(1985) (BLACKMUN, J., dissenting).
[
Footnote 2/5]
Unlike JUSTICE BLACKMUN,
post at
489 U. S.
464-466, I would weigh necessity and prejudice in
categories of situations, rather than on a case-by-case basis.
Thus, just as in
Erie Resistor, where we held grants of
super-seniority to be
per se illegal, regardless of the
business necessity that might be found in the particular case, I
have no difficulty in determining that discrimination in favor of
crossovers in post-strike callbacks -- even if perhaps less
egregious than grants of super-seniority -- is inherently
destructive of the right to strike, notwithstanding whatever
business purpose the employer might be able to assert in an
individual case. I agree, in any event, with JUSTICE BLACKMUN's
conclusion,
post at
489 U. S. 466,
that such employer conduct could rarely be shown to be "necessary"
under the standard of
Railway Clerks v. Florida East Coast R.
Co., 384 U. S. 238
(1966).
[
Footnote 2/6]
While there might be circumstances in which some neutral
principle other than seniority might be acceptable as a basis for
recalls (
e.g., the employer's need for particular skills),
seniority is so well established in labor relations as the basis
for such decisions that exceptions should be rare. Indeed we have
described seniority as of "overriding importance" in "determin[ing]
who gets or who keeps an available job."
Humphrey v.
Moore, 375 U. S. 335,
375 U. S.
346-347 (1964). In any case, TWA has made no pretense
that its discriminatory recalls are justified by some other neutral
principle.
[
Footnote 2/7]
The NLRB, in an
amicus brief, argues that the employer
not only may, but must, accord preferential treatment to crossovers
on the ground that, once the crossovers have resumed work -- which
they have a right to do if jobs are available -- the positions they
occupy are not "vacant" at the end of the strike. Brief for NLRB as
Amicus Curiae 13-15;
see also ante at
489 U. S. 438.
This argument simply begs the question. If the employer is
prohibited from discriminating among members of the bargaining unit
on the basis strike activity in allocating post-strike jobs, then
the employer may not promise certain bargaining unit members that
the jobs will be theirs permanently merely because those members
returned to work during the strike. Whether or not the employer may
do this is precisely the question this case presents, and the
answer to that question cannot be assumed by stating it as a
premise. Neither
NLRB v. Fleetwood Trailer Co.,
389 U. S. 375
(1967), nor
Laidlaw Corp., 171 N.L.R.B. 1366 (1968), dealt
with the conflicting rights of crossovers and full-term
strikers.
Similarly, the Court's concluding statement that
"the decision to guarantee to crossovers the same protections
lawfully applied to new hires was a simple decision to apply the
preexisting seniority terms of the collective bargaining agreement
uniformly to all
working employees,"
ante at
489 U. S. 443
(emphasis added), again assumes what must be proved. If "working"
refers to the post-strike period, which employees are working and
which are not is a function of the employer's decision to give
preference to the crossovers; if, instead, it refers to the period
prior to the strike's end, the question remains whether the
employer may make post-strike employment decisions on the basis of
which employees were "working" during the strike.
JUSTICE BLACKMUN, with whom JUSTICE BRENNAN joins as to Parts I
and II, dissenting.
The central question in this Railway Labor Act (RLA) case is
whether it is unlawful for a carrier to refuse to reinstate
employees who supported a strike until its end ("full-term
strikers") solely because the carrier chooses to retain in its
active workforce employees who returned to work before the strike's
conclusion ("crossovers"). [
Footnote
3/1]
The Court today answers that question in the negative,
concluding that such conduct never violates the RLA, regardless of
whether business necessity dictated the carrier's course of action.
In dissent, JUSTICE BRENNAN takes the diametrically opposite view,
in agreement with the Court of Appeals. JUSTICE BRENNAN finds such
conduct "inherently destructive,"
ante at
489 U. S. 443,
of the right to strike, and violative of the RLA, regardless of any
proffered business justification. In my view, neither of these
positions accurately captures the delicate balance our RLA
precedents have attempted to achieve between the public's dual
interests in the maintenance of transportation service during labor
disputes and in the long-term stability of labor relations in the
rail and airline industries.
Page 489 U. S. 453
My differences with JUSTICE BRENNAN are limited in scope.
Concisely stated, I give greater weight than he does to the RLA's
policy in favor of continued operations, and accordingly conclude
that this case should be remanded to permit TWA to make a factual
showing that its crossover policy truly was necessary for that
purpose. The Court's opinion presents far greater concerns, as much
because of the false assumptions that underlie the Court's analysis
as because of its erroneous result.
I
The threshold question is whether the provisions and policies of
the RLA place any limit on a carrier's exercise of self-help during
a strike. The Court acknowledges that the RLA does contemplate such
a limit. Indeed, there would be little need to distinguish,
see
ante at
489 U. S. 436,
TWA's crossover policy from the super-seniority policy in
NLRB
v. Erie Resistor Corp., 373 U. S. 221
(1963), if the RLA had no relevance to the legality of grants of
super-seniority, or to other, even more egregious, discriminatory,
and coercive employer practices. But the Court adopts a stingy
interpretation of the RLA, reserving the RLA's protective force for
only the most extraordinary circumstances. In so doing, the Court
uses language which suggests that any limit on employer self-help
must be "impl[ied],"
ante at
489 U. S. 442,
which in turn suggests that the Court finds no express limit in the
text of the RLA. I find no basis for that view, a view which does
not sit comfortably with the Court's opinion, read as a whole, and
which results in a far too restrictive reading of the RLA.
When the Court addressed the permissible scope of employer
self-help under the RLA in
Trainmen v. Jacksonville Terminal
Co., 394 U. S. 369
(1969), it held that the RLA permits
"parties who have unsuccessfully exhausted the Railway Labor
Act's procedures for resolution of a major dispute to employ the
full range of whatever peaceful economic power they can muster,
so long as its use conflicts with no other obligation imposed
by federal law."
Id. at
394 U. S. 392
(emphasis
Page 489 U. S. 454
added). In applying that holding to the facts of this case, the
Court rejects the proposition that § 2 Fourth of the RLA, 44 Stat.
577,
as amended, 45 U.S.C. § 152 Fourth, creates a
relevant conflicting federal obligation.
The Court's stated reason for rejecting the applicability of § 2
Fourth sweeps too broadly. The Court places great emphasis on the
fact that the 1934 amendments which introduced § 2 Fourth had a
"precertification focus."
Ante at
489 U. S. 441.
It should be clear, however, that a pre-certification focus is not
the same as a post-certification blindspot. In 1934, Congress was
faced with evidence that railroad employees' efforts at
self-organization had been thwarted by coercive employer tactics,
including the support of employer-dominated company unions.
See
Machinists v. Street, 367 U. S. 740,
367 U. S. 759
(1961). Certainly, Congress had cause for concern: unless each side
is free to choose its own bargaining representative, there can be
no legitimate bargaining relationship. There is no indication,
however, that Congress' concern in enacting § 2 Fourth is satisfied
at the moment of a union's certification. Congress aimed to protect
the employee's right to organize and join unions "with a view to
asserting himself as to hours, conditions, and wages," 78 Cong.Rec.
11720 (1934) (remarks of Rep. Monaghan) -- not as an end in itself.
This Court long has recognized that a
"primary purpose of the major revisions made in 1934 was to
strengthen the position of the labor organizations
vis-a-vis the carriers, to the end of furthering the
success of the basic congressional policy of self-adjustment of the
industry's labor problems."
Machinists v. Street, 367 U.S. at
367 U. S.
759.
Indeed, the Court today acknowledges that, precertification
focus notwithstanding, § 2 Fourth has relevance to the right of
employees to decide whether to assist in postcertification union
activities free from employer coercion. The Court places
substantial reliance on § 2 Fourth as the source of "an employee's
right to choose not to strike,"
ante at
489 U. S.
436,
Page 489 U. S. 455
a right relevant to this case only if it applies to
post-certification strike activity.
Finding § 2 Fourth to be a source of the right not to strike is
entirely proper. In
Radio Officers v. NLRB, 347 U. S.
17 (1954), the Court held that the protection § 8(a)(3)
of the NLRA affords against employer discrimination "to . . .
discourage membership in any labor organization," 29 U.S.C. §
158(a)(3), extends to "discrimination to discourage participation
in union activities, as well as to discourage adhesion to union
membership." 347 U.S. at
347 U. S. 40. I
see no reason why similar language in § 2 Fourth,
i.e.,
its protection of employees' right to "join or remain or not to
join or remain members of any labor organization," should not be
read in a similar fashion.
Cf. Trainmen v. Jacksonville
Terminal Co., 394 U.S. at
394 U. S. 385,
n. 20. Neither, apparently, does the Court. And if § 2 Fourth bars
discrimination or retaliation against employees who choose not to
strike, the same must be true of discrimination or retaliation
against employees who choose to strike.
See Railway Labor
Executives' Assn. v. Boston & Maine Corp., 808 F.2d 150,
158 (CA1 1986),
cert. denied, 484 U.S. 830 (1987);
Air
Line Pilots Assn. v. United Air Lines, Inc., 802 F.2d 886, 897
(CA7 1986),
cert. denied, 480 U.S. 946 (1987).
In contrast, the Court's suggestion that the RLA provides
employees no
express protection against discrimination on
the basis of levels of support for union activities leads the Court
to limit the RLA's force to whatever protections this Court is
willing to "imply" from the RLA's general policies. This
uncertainty carries with it the danger of undermining the stability
of labor relations under the RLA. Under this Court's longstanding
RLA jurisprudence, a strike that takes place after the RLA's
dispute-resolution mechanisms have failed "represents only an
interruption in the continuity of the relation" between employer
and union, not an invitation for "labor-management relations [to]
revert to the jungle."
Railway Clerks v. Florida
East Coast R. Co., 384 U.
S. 238,
Page 489 U. S. 456
384 U. S.
246-247 (1966). Stated otherwise, a strike under the RLA
is a "bounded conflict."
Cf. Estreicher, Strikers and
Replacements, 38 Lab.L.J. 287, 288 (1987). Contract negotiations
are limited in scope to the matters raised by the parties'
bargaining notices,
see 45 U.S.C. § 156; both during and
after strikes that occur following unsuccessful mediation, the
union often will maintain its status as exclusive bargaining
representative.
See, e.g., Trans World Airlines, Inc. v.
Independent Federation of Flight Attendants, 809 F.2d 483, 492
(CA8 1987),
aff'd by equally divided Court, 485 U.
S. 175 (1988). The long-term stability of labor
relations thus will depend upon the maintenance of the working
relationship between the union and the employer. This Court has
been aware in the past that one party's power of self-help cannot
be permitted effectively to negate the other's, lest "the right of
self-help . . . become unilateral,"
Railway Clerks v. Florida
East Coast R. Co., 384 U.S. at
384 U. S. 246,
and that a carrier cannot be permitted to reap rewards from a
strike so much in excess of the rewards of negotiation that it will
"have a strong reason to prolong the strike and even break the
union."
Id. at
384 U. S. 247.
The central emphasis of the RLA on continuity of labor relations
requires courts to take the long view.
See, e.g. Empresa
Ecuatoriana de Aviacion v. District Lodge No. 100, 690 F.2d
838, 845 (CA11 1982),
cert. dism'd, 463 U.S. 1250 (1983);
National Airlines, Inc. v. International Assn. of Machinists
& Aerospace Workers, 416 F.2d 998, 1006 (CA5 1969).
The Court's position leaves far too little room for these
concerns. By interpreting the RLA as affording protection to
striking employees only in the most unusual circumstances, the
Court encourages employers to test the limits, knowing that the
burden will fall on the employees to demonstrate that the
employer's conduct has crossed an artificially high barrier of
"implied" tolerance for employer coercion. The Court thus
needlessly creates incentives to undermine long-term
Page 489 U. S. 457
labor stability and to expand labor conflicts beyond their
natural bounds.
In sum, this Court consistently has recognized that there is a
difference between traditional self-help economic pressure and
coercion or discrimination in derogation of federal law. The Court
today continues to recognize this principle, and is willing to
"imply" protection in extraordinary circumstances. But Congress did
not leave the protection of employee rights to this Court's
selective "implication." I reject this Court's failure to give full
force to § 2 Fourth, the RLA's express statutory prohibition of
coercive and discriminatory employer conduct.
II
Even under the standards the Court articulates today, the result
it reaches in this case cannot stand. The Court's conclusion that
TWA's conduct cannot be said to violate the statutory rights
(implied or otherwise) of full-term strikers fails to take
seriously the significant discriminatory impact of TWA's refusal to
reinstate full-term strikers. That failure rests on two assumptions
that are patently inconsistent with central tenets of federal labor
law.
First, the Court appears to suggest that, because there were no
"vacancies" for the full-term strikers to fill, employer
"discrimination" cannot have been a factor in the final allocation
of post-strike positions in the active workforce. Contrary to this
view, this Court long has held that the mere fact that a particular
employee occupies a job at the conclusion of a strike does not
entitle the employee to retain that job. This is illustrated by our
NLRA precedents. Under
NLRB v. Mackay Radio & Telegraph
Co., 304 U. S. 333,
304 U. S. 347
(1938), an employer subject to the NLRA is "not bound to displace
men hired to take the strikers' places in order to provide
positions for them" if the employer has found it necessary to
promise the replacements permanent employment in
Page 489 U. S. 458
order to operate during the strike. [
Footnote 3/2] In contrast, positions occupied by new
hires to whom no promise of "permanent replacement" status is made
are as good as "vacancies" from the full-term strikers' point of
view. The employer's legal right to resist a union demand for
reinstatement flows from the necessity of the offer of permanence;
absent such necessity, the employer may be required to furlough (or
discharge) the replacements to make room for the strikers' return.
See NLRB v. Fleetwood Trailer Co., 389 U.
S. 375,
389 U. S.
378-379 (1967);
Belknap, Inc. v. Hale,
463 U. S. 491,
463 U. S. 514,
463 U. S. 517
(1983) (opinion concurring in judgment). The post-strike situation
is not, in short, a game of musical chairs: it is governed not by
the rule of capture, but by conflicting claims of legal
entitlement.
Second, and in tacit recognition that the post-strike situation
is governed by law, rather than by force or happenstance, the Court
elevates the rights of crossovers to the preeminent position, a
position which in the Court's view flows naturally from the RLA's
and NLRA's protection of "an employee's right to choose not to
strike."
Ante at
489 U. S. 436.
From the fact that some employees will disagree with the union's
decision to strike, the Court deduces the proposition that
"employees who chose not to gamble on the success of the strike"
should not "suffer the consequences when the gamble proves
unsuccessful."
Ante at
489 U. S.
438.
The Court's analysis entirely ignores, and threatens to vitiate,
the "
majority-rule concept [that] is today unquestionably at
the center of our federal labor policy.'" NLRB v.
Allis-Chalmers Mfg. Co., 388 U. S. 175,
388 U. S. 180
(1967), quoting Wellington, Union Democracy and Fair
Representation: Federal Responsibility in a Federal System, 67 Yale
L.J. 1327, 1333 (1958).
"Congress has seen fit to clothe the bargaining representative
with powers comparable to those possessed
Page 489 U. S. 459
by a legislative body both to create and restrict the rights of
those whom it represents."
Steele v. Louisville & Nashville R. Co.,
323 U. S. 192,
323 U. S. 202
(1944) (discussing the duty of fair representation). What the Court
characterizes as "
their union's decision to strike,"
ante at
489 U. S. 437
(emphasis added), is the decision reached by the majority of the
members of the bargaining unit through democratic processes. The
right to remain a member of the collectivity but to opt out of the
consequences of particular collective decisions when the going gets
rough is not a normal incident of participation in the democratic
process.
The Court also overlooks the long-recognized fact that the
benefits of successful union activity flow to all members of the
bargaining unit, regardless of their personal support for the
union.
See Railway Employees v. Hanson, 351 U.
S. 225,
351 U. S. 238
(1956);
Machinists v. Street, 367 U.S. at
367 U. S. 762.
By elevating the right of crossovers to be "free rider[s],"
id. at
367 U. S.
762-763, nn. 13 and 14, to the status of a first
principle of labor law, the Court forgets that, by definition, the
benefits and burdens of collective action are borne
collectively.
This newly-asserted statutory right of dissidents to be free
from the consequences of collective action buckles under the heavy
load the Court asks it to bear. As TWA concedes and the Court
recognizes, employers and unions often lawfully agree to displace
crossovers through post-strike back-to-work agreements, and
employers may unilaterally decide to permit such displacement.
See Brief for Petitioner 29;
see also Copaz Packing
Corp., 115 LRRM 1008, 1008 (1983) (NLRB General Counsel Advice
Memorandum) (employers are "privileged to enter into a strike
settlement which provide[s] that . . . crossovers and strikers who
remained on strike until the settlement would be treated equally
for recall purposes");
Florida East Coast R. Co., 41
Lab.Arb. 1001, 1006-1007 (1963) (recommendation of Presidential
Emergency Board that the carrier replace crossovers and new-hire
replacements, who were the post-strike "occupants of the jobs
covered
Page 489 U. S. 460
by agreements between the Carrier and the organizations with
striking employees to the extent necessary to permit these jobs to
be filled on the basis of seniority"). If the right of dissidents
to be free of the economic consequences of strikes is so central,
it is difficult to see why the union has the power to bargain it
away, or why the employer has the power to ignore it.
In sum, the Court concludes that TWA's conduct was lawful on the
basis of two assumptions: that the resulting job distribution is
justified by the absence of "vacancies" for the returning strikers,
and that TWA's acts were a necessary consequence of its duty to
respect the crossovers' statutory right not to strike. The Court
allows these assumptions to stand in the way of considering the
adverse impact of TWA's actions on the full-term strikers'
statutory rights. But I find these assumptions to be without
foundation, and thus turn to the question the Court fails to
reach.
III
A
At the conclusion of the strike, TWA refused to reinstate
full-term strikers to positions then occupied by crossovers. In
analyzing the lawfulness of TWA's conduct, certain NLRA principles
provide a useful starting point. This Court has recognized under
the NLRA that an employer's refusal to reinstate striking employees
discourages employees from exercising their right to organize and
to strike,
NLRB v. Fleetwood Trailer Co., 389 U.S. at
389 U. S. 378,
and violates the statutory prohibition against discrimination
"unless the employer . . . can show that his action was due to
legitimate and substantial business justifications.'"
Ibid., quoting NLRB v. Great Dane Trailers, Inc.,
388 U. S. 26,
388 U. S. 34
(1967). If the employer fails to meet this burden, the inquiry is
at an end. Furthermore, in certain circumstances,
"the Board can find an unfair labor practice even if the
employer introduces evidence that the conduct was motivated by
business considerations, "
Page 489 U. S. 461
id. at
388 U. S. 34, by
striking "
the proper balance between the asserted business
justifications and the invasion of employee rights.'"
Metropolitan Edison Co. v. NLRB, 460 U.
S. 693, 460 U. S. 703
(1983), quoting Great Dane, 388 U.S. at 388 U. S. 33-34.
[Footnote 3/3]
These basic principles are consistent with our RLA precedents.
In
Railway Clerks v. Florida East Coast R. Co.,
384 U. S. 238
(1966), the carrier, during a strike, resorted to self-help in
facial violation of § 2 Seventh of the RLA, which prohibits
unilateral changes in terms and conditions of employment embodied
in collective agreements. The Court held that the carrier could not
fulfill its duty to the public to make reasonable efforts to
maintain service during the strike if § 2 Seventh were applied with
full force during strikes. To accommodate the public interest in
continued service, it interpreted
Page 489 U. S. 462
the RLA as granting the carrier a "closely confined and
supervised" power to alter the terms of the agreement during a
strike in order to continue service under the particular strike
conditions presented by that case. 384 U.S. at
384 U. S. 246.
The appropriate standard for reviewing a carrier's alteration of an
agreement, the Court concluded, was adequately captured by the
words "reasonably necessary," "provided that
reasonably
necessary' is construed strictly" to mean "only such changes as are
truly necessary . . . for the continued operation" of the carrier.
Id. at 384 U. S.
248.
In this case, we address conduct that facially violates a
different provision of the RLA: § 2 Fourth's bar against conduct by
a carrier which, by its natural tendency, induces or influences
employees in their decisions to support or refrain from supporting
union activities. The logic of
Florida East Coast R. Co.,
however, is equally applicable here, and suggests that a carrier's
refusal to reinstate strikers -- conduct which, on its face,
violates § 2 Fourth because of its tendency to influence adversely
employees' willingness to support strikes -- is unlawful if the
refusal was not truly necessary for the continued operation of the
carrier during the strike.
In my view, there is no basis under the RLA for a presumption
that offers of permanence are necessary in order to induce
crossovers and outside replacements to work during a strike.
Cf. Hot Shoppes, Inc., 146 N.L.R.B. 802, 805 (1964);
Belknap, Inc. v. Hale, 463 U.S. at
463 U. S. 504,
n. 8 (discussing presumptive necessity of offers of permanence to
outside replacements under the NLRA). The Court recognized in
Florida East Coast R. Co., 384 U.S. at
384 U. S. 246,
that a carrier may have need to "improvis[e] and emplo[y] an
emergency labor force" in order to continue operations. Under the
RLA, as under the NLRA, in short, the Court has recognized that the
employer has "the right to protect and continue his business by
supplying places left vacant by strikers."
NLRB v. Mackay Radio
& Telegraph Co., 304 U.S. at
304 U. S. 345.
The Union does not here dispute that proposition,
Page 489 U. S. 463
nor does it question that RLA employers may offer new hires
"permanent" status.
Cf. id. at
304 U. S. 346.
But this Court has also recognized that the public has an interest
in the long-term stability of labor relations in industries
governed by the RLA.
See Virginian R. Co. v. Railway
Employees, 300 U. S. 515,
300 U. S. 552
(1937). A rule that presumes that replacements and crossovers must
be offered permanence would needlessly infringe on that interest in
stability.
"There may be some who will . . . argu[e] that employees must
take their chances on being permanently replaced when they elect to
go on strike. There is little doubt that striking employees have
lost their jobs in many firms through the application of this
principle. On the other hand, we are concerned in this case not
with an ordinary private business, but with a common carrier in an
industry vital to the public. . . . Experience suggests that the
prospects for achieving a 'peaceable settlement' of this dispute
will remain in jeopardy so long as the striking employees are
prevented from working by the presence of the newly-hired
replacements. While this situation persists, the organizations can
be expected to employ every legitimate means to put pressure on the
company to reinstate the strikers. Controversy of this kind may
interfere with the legitimate needs of passengers and shippers. . .
. Moreover, other railroads may be tempted to follow the example of
this carrier, thus provoking bitter and disruptive disputes in
other sections of the country."
Florida East Coast R. Co., 41 Lab.Arb. at 1006-1007.
This risk should be taken only if absolutely necessary to the
carrier's continued operations. Presuming the need does gratuitous
damage to significant statutory interests. [
Footnote 3/4]
Page 489 U. S. 464
B
In his dissent, JUSTICE BRENNAN does not reach the question
whether a carrier who offers permanence to replacements and
crossovers is entitled to a presumption of business necessity.
Indeed, he would not even
permit TWA to make a
case-specific showing that its crossover policy was necessary for
its continued operation during the strike. Here, our positions
differ: I would require the carrier to prove the business necessity
of offering permanence to replacements and crossovers on the facts
of each case. [
Footnote 3/5]
Page 489 U. S. 465
JUSTICE BRENNAN rests his contrary position on
NLRB v. Erie
Resistor Corp., 373 U. S. 221
(1963). In that case, an employer granted 20 years super-seniority
to employees (new hires and crossovers) who had worked during a
strike, which later placed reinstated full-term strikers at a
substantial and long-term risk of layoff. There, the NLRB found,
and this Court agreed, that
"the employer's insistence that its overriding purpose in
granting super-seniority was to keep its plant open, and that
business necessity justified its conduct was unacceptable, since,
'to excuse such conduct would greatly diminish, if not destroy, the
right to strike guaranteed by the Act.'"
Id. at
373 U. S.
225-226 (quoting
Erie Resistor Corp., 132
N.L.R.B. 621, 630 (1961)). Because the Court concluded that the
stated business justification would not outweigh the asserted
interest in continued operation, no factual inquiry into whether
the employer's claim that he could not otherwise have operated
during the strike was held to be necessary.
Two considerations cause me to part ways with JUSTICE BRENNAN's
conclusion. First, it is not so clear to me as it is to JUSTICE
BRENNAN,
ante at
489 U. S. 449,
that TWA's conduct in this case is sufficiently egregious for its
destructive impact to outweigh the interest in maintaining
operations during the strike. In
Erie Resistor, this Court
identified a number of factors that made grants of super-seniority
particularly harmful to employee rights. TWA's conduct, like the
conduct at issue in
Erie Resistor, induces employees to
abandon the strike, and particularly harms full-term strikers.
See 373 U.S. at
373 U. S.
230-231. But in
Erie Resistor, the Court
stressed that fact that, for years after the strike, reinstated
strikers would face a greater risk of layoff because of the
additional seniority given to those who worked during the strike.
Although
Erie Resistor does not suggest an overarching
principle identifying which factors are dispositive, the absence of
a
Page 489 U. S. 466
similar continued threat of loss of employment suggests to me
that the crossover policy at issue here is not so destructive of
employee rights as was the super-seniority policy at issue in
Erie Resistor. The fact that the Court struck the balance
against the employer in
Erie Resistor is thus not
dispositive.
Second, and more generally, I am concerned that a standard that
permits courts to balance employer and employee interests in the
abstract, without a concrete evidentiary record, will lead to
erroneous results that endanger the unique statutory interests
embodied in the RLA. In the past, we have recognized that the
public has a significant interest in the continuity of
transportation services during labor disputes, and that the RLA
protects that interest. Railroad and airline industry employers, we
have held., must make "reasonable efforts to maintain the public
service at all times, even when beset by labor-management
controversies."
Florida East Coast R. Co., 384 U.S. at
384 U. S. 245.
I recognize that we have stopped short of holding that federal law
imposes an absolute duty to operate during strikes,
see
id., at
384 U. S. 250
(WHITE, J., dissenting), and thus have never held that the interest
in continued operation cannot be outweighed by other concerns. In
my view, however, the balance should be struck on a case-by-case
basis, and upon a factual record. I expect that it will be a rare
case in which gravely destructive carrier conduct will be
proved necessary to continued operation under the strict
standard of necessity established by
Florida East Coast.
The ultimate question as to which interest should prevail in such a
case is one we can afford to leave unanswered until it is presented
on proper facts.
IV
Because the Court of Appeals found TWA's conduct unlawful
without considering whether TWA's crossover policy was "truly
necessary" for continued operations during the strike, I would
vacate the judgment of the Court of Appeals and direct
Page 489 U. S. 467
that court to remand the case for consideration of that issue.
[
Footnote 3/6] Inasmuch as this
Court is now reversing outright, I dissent.
[
Footnote 3/1]
The question has been presented by the parties, and is stated by
the Court, in terms of reinstatement of full-term strikers
with
greater seniority. For reasons explained in
489
U.S. 426fn3/6|>n. 6,
infra, however, the question
whether the final allocation of positions must be made on the basis
of seniority is essentially remedial in nature.
Cf. Lone Star
Industries, Inc., 279 N.L.R.B. 550 (1986) (employer is free to
choose any nondiscriminatory means of making its post-strike
reinstatement decisions). The question upon which liability turns
is whether the basis of the allocation made (
i.e., the
duration of the employee's support for the strike) was
discriminatory.
[
Footnote 3/2]
The employer, of course, may agree to discharge permanent
replacements, subject to any claims the replacements may have under
state law.
See Belknap, Inc. v. Hale, 463 U.
S. 491,
463 U. S.
496-497,
463 U. S. 500
(1983).
[
Footnote 3/3]
Under § 8(a)(3) of the NLRA, 29 U.S.C. § 158(a)(3), the
employer's motive is relevant to the analysis.
See Metropolitan
Edison Co. v. NLRB, 460 U. S. 693,
460 U. S. 700
(1983);
see generally Christensen & Svanoe, Motive and
Intent in the Commission of Unfair Labor Practices: The Supreme
Court and the Fictive Formality, 77 Yale L.J. 1269 (1968). The
motive inquiry does not arise, however, unless the employer is able
to demonstrate business justification for his actions. At that
point, the course of the inquiry varies depending upon the severity
of the adverse impact of the employer's conduct on employee rights.
Where the impact is relatively slight, the employer's conduct will
be deemed lawful unless the union proves that the employer's
conduct was motivated by antiunion animus.
See NLRB v. Great
Dane Trailers, Inc., 388 U. S. 26,
388 U. S. 34
(1967). Where, in contrast, the impact is sufficiently severe to
render the employer's conduct "
inherently destructive' of
important employee rights," ibid., antiunion motive may be
inferred from the conduct itself. See NLRB v. Erie Resistor
Corp., 373 U. S. 221,
373 U. S. 228,
231 (1963).
To decide this case, it is not necessary to resolve the question
whether antiunion motive is a necessary element of a § 2 Fourth
violation. I think it clear that the crossover policy at issue here
is "inherently destructive" of employee rights: it is sufficiently
destructive not to require an express showing of antiunion motive
even under the motive-based standards of § 8(a)(3). For this same
reason, I note, TWA's conduct falls afoul of the RLA under the
"inherently destructive" standard set forth by the Court in this
case.
See ante at
489 U. S. 442.
[
Footnote 3/4]
Count 2 of the union's complaint seeks
"to establish that it was not necessary for TWA to offer
permanent jobs to the replacements hired from outside the
pre-strike workforce, and that TWA therefore violated the RLA by
doing so."
Brief for Respondent 3, n. 5;
see App. to Pet. for
Cert. 55a-56a. That claim has not yet been tried, and remains
pending.
See Tr. of Oral Arg. 42. The union has explained
that Count 2 of the complaint, as drafted, proceeds on the theory
that the employer is entitled to a rebuttable presumption that an
offer of permanence is necessary for continued operation. Brief for
Respondent 39. The union takes the position that, although
"there may well be a basis for erecting a presumption that
offers of permanence to outside replacements are 'truly necessary'
in order to operate during a strike, and placing the burden to
prove otherwise on the injured full-term strikers or their union,
there is no basis for any such presumption with regard to
crossovers."
Ibid. (footnote omitted). I agree with the union that
there is less basis for presuming the necessity of an offer of
permanence in the case of crossovers than in the case of outside
replacements. But, as indicated in the text, I would go further: I
see no need to afford the carrier the benefit of a rebuttable
presumption of business necessity, even in the case of outside
replacements.
[
Footnote 3/5]
Adopting a uniform standard applicable to both outside
replacements and crossovers disposes of the argument that to permit
full-term strikers to displace crossovers would have the anomalous
result of treating crossovers more harshly than permanent
replacements.
Ante at
489 U. S. 434,
489 U. S. 436;
see Tr. of Oral Arg. 43. In a particular case, members of
the pre-strike workforce may well return to work solely because
they can no longer endure the present economic costs of the strike,
and will do so without further inducement. If the carrier also
needs to hire outside replacements, and legitimately finds that it
can do so only by promising them that they will not be laid off to
make room for returning strikers, the result in that case will be
that the crossovers will have less protection from layoff than will
the new hires. This result is not anomalous, however; it is merely
the result of applying a uniform standard to disparate facts.
[
Footnote 3/6]
If it proved to be the case on remand that TWA's crossover
policy was indeed unlawful, the question (noted at n. 1,
supra) would arise whether the union is entitled to the
specific relief it seeks: the allocation of positions in the active
workforce on the basis of seniority. This Court suggested in
NLRB v. Mackay Radio & Telegraph Co., 304 U.
S. 333,
304 U. S. 347
(1938), and the NLRB held in
Lone Star Industries, 279
N.L.R.B. 550 (1986), that an employer may make its post-strike
reinstatement decisions on the basis of
any
nondiscriminatory criterion. Because "[i]t is universally
recognized, as a matter of sound labor relations, that seniority
provides the employee with an equitable interest in continued
employment,"
Florida East Coast R. Co., 41 Lab.Arb. 1001,
1006 (1963), seniority is likely to be the neutral criterion of
choice. Indeed, TWA unilaterally implemented a settlement proposal
calling for reinstatement of full-term strikers to "vacancies" in
seniority order.
See App. 90-91; App. to Pet. for Cert.
52a-53a (Complaint � 28).
Although this unilateral undertaking may well bind TWA at the
remedial stage of this litigation, I note that the union has not
based its entitlement to seniority-based relief on that ground. Nor
has the union argued (at least explicitly) that specific provisions
of its collective bargaining agreement require that result.
Cf.
Eastern Air Lines, Inc., 48 Lab.Arb. 1005 (1967) (interpreting
general seniority provisions of collective bargaining agreement as
applicable to post-strike reinstatement). Rather, the union's
argument for a seniority-based remedy appears to be purely
statutory in nature. There is some merit to the view that the
bounded nature of strikes under the RLA requires that seniority be
used as the mechanism for post-strike reinstatement because it will
achieve the closest possible approximation of the pre-strike
workforce. But there is some danger that imposing seniority-based
reinstatement as a statutory matter would place courts in the
position of expanding contractual seniority provisions beyond their
contemplated scope. In light of the likelihood that TWA would
voluntarily employ seniority as a basis for its reinstatement
decisions on remand, this question need not be reached.