Trans World Airlines, Inc. v. IND. FED. OF FLIGHT ATTEND.

• Decision Date: 01 August 1986
• Docket Number: No. 86-6059-CV-SJ-6.,86-6059-CV-SJ-6.
• Citation: 640 F. Supp. 1108
• Parties: TRANS WORLD AIRLINES, INC., Plaintiff, v. The INDEPENDENT FEDERATION OF FLIGHT ATTENDANTS, an unincorporated labor organization, Defendant.
• Court: U.S. District Court — Western District of Missouri

640 F. Supp. 1108

TRANS WORLD AIRLINES, INC., Plaintiff, v. The INDEPENDENT FEDERATION OF FLIGHT ATTENDANTS, an unincorporated labor organization, Defendant.

No. 86-6059-CV-SJ-6.

United States District Court, W.D. Missouri, St. Joseph Division.

August 1, 1986.

Murray Gartner, Proskauer Rose Goetz & Mendelsohn, New York City and Paul E. Donnelly, Stinson, Mag & Fizzell, Kansas City, Mo., for plaintiff.

William A. Jolley, Doyle T. Pryor, Scott A. Raisher, Jolley, Walsh, Hager & Gordon, Kansas City, Mo., for defendant.

MEMORANDUM AND ORDER

SACHS, District Judge.

Trans World Airlines (TWA) has filed suit to determine whether the union security clause in a collective bargaining agreement survives into the self-help period after an impasse in bargaining over other issues. The Flight Attendants' Union (IFFA) counterclaims for a ruling that Article 24, the union security clause, remains in force, including provisions for check-off of union dues and a requirement that new hires join the union. Both parties have moved for summary judgment and both agree the court is presented with an issue of law, based on undisputed facts. The motions were argued July 12, 1986.

The issue raises two questions: (1) Did Article 28, the duration provision of the contract, cause parts of the contract that were not the subject of bargaining to continue in effect, or did notice of certain intended changes trigger a total termination of the agreement? (2) If the contract provides for total termination upon impasse over proposals for limited changes, is such a duration provision lawful under the Railway Labor Act?

The arguments of the parties focus on the second question. It would ordinarily be more appropriate to consider first the narrower question, largely confined to the rather unusual language of this agreement, instead of dealing with a statutory question having major import to labor relations in the airline industry. Both questions are sufficiently difficult, however, to justify reasoning in the alternative, and the parties emphasize the second question in their briefing and argument. The court will therefore consider the questions in reverse order, and will initially make the assumption that the contract provided for total termination of contract obligations upon any impasse in bargaining, and that a lawful impasse has occurred.¹

I

Forceful language in a Supreme Court opinion supports the IFFA contention that the Railway Labor Act contemplates (1) continuity in the relationships between employers and representatives of employees, and (2) the development of carefully crafted contractual provisions that will become almost permanent fixtures governing certain phases of the employer-employee relation. Brotherhood of Railway & Steamship Clerks, Freight Handlers, Express & Station Employees v. Florida East Coast Railway, 384 U.S. 238, 86 S.Ct. 1420, 16 L.Ed.2d 501 (1966) (FEC).

The controversy in the FEC case and in the present case centers on § 2 Seventh of the Act (45 U.S.C. § 152 Seventh) which provides that "no carrier ... shall change the rates of pay, rules, or working conditions of its employees, as a class, as embodied in agreements except in the manner prescribed in such agreements or in Section 6 of this Act." Section 6 (45 U.S.C. § 156) requires at least thirty days' written notice of intended changes in agreements, and thereafter a protracted negotiating period before the parties are released to make such changes or otherwise engage in self-help.

Although an air or rail carrier may, after impasse in bargaining over proposed changes and release from further bargaining duties by the National Mediation Board, face a strike and may continue its operations with a substantially different labor force, the Court declared in FEC:

Any power to change or revise the basic collective agreement must be closely confined and supervised. These collective bargaining agreements are the product of years of struggle and negotiation; they represent the rules governing the community of striking employees and the carrier. That community is not destroyed by the strike, as the strike represents only an interruption in the continuity of the relationship. Were a strike to be the occasion for a carrier to tear up and annul, so to speak, the entire collective bargaining agreement, labor-management relations would revert to the jungle. A carrier could then use the occasion of a strike over a simple wage and hour dispute to make sweeping changes in its work-rules so as to permit operation on terms which could not conceivably have been obtained through negotiation. Having made such changes, a carrier might well have little incentive to reach a settlement of the dispute that led to the strike. It might indeed have strong reason to prolong the strike and even break the union. The temptation might be strong to precipitate a strike in order to permit the carrier to abrogate the entire collective bargaining agreement on terms most favorable to it. The processes of bargaining and mediation called for by the Act would indeed become a sham if a carrier could unilaterally achieve what the Act requires be done by the other orderly procedures.

384 U.S. at 246-47, 86 S.Ct. at 1424-25.

The opinion of Justice Douglas continued: "While the carrier has the duty to make all reasonable efforts to continue its operations during a strike, its power to make new terms and conditions governing the new labor force is strictly confined, if the spirit of the Railway Labor Act is to be honored." 384 U.S. at 247, 86 S.Ct. at 1425. In footnote 7, the Court observed that a temporary deviation from the agreement during a strike might be authorized as to changes sought during negotiation or permitted by a district court as being essential to operations, but at the conclusion of the strike (presumably by agreement) "the terms of the earlier collective bargaining agreement, except as modified by any new agreement of the parties, would be fully in force." Id.

No member of the Court disagreed with this language, but Justice White dissented from the conclusion that a district court could authorize changes in the agreement during the strike, where such changes had not been the subject of bargaining. 384 U.S. at 249, 86 S.Ct. at 1426. He described the Court's ruling as one construing § 2 Seventh as forbidding the carrier "to make any changes in the contract other than those on which bargaining has taken place ..." Id.

TWA offers two rationales for distinguishing FEC. First, it contends the FEC ruling itself simply deals with the district courts' power, during a strike, to approve a change in collective bargaining provisions not addressed at the negotiating table. The message to those courts to impose a high burden on a carrier seeking approval of contemplated changes during the impasse period seems to have been only a subordinate theme in the opinion. It is difficult to avoid the conclusion that the principal message of the decision is that a carrier acting on its own is forbidden by law to make "changes in the contract other than those on which bargaining has taken place." 384 U.S. at 249, 86 S.Ct. at 1426 (White, J., dissenting).²

TWA's second rationale for distinguishing FEC centers on its observation that FEC involved a railroad collective bargaining agreement which had no expiration date, and was therefore a continuing contractual commitment subject to reopening of particular provisions. TWA contends there is implicit reference to the Court's understanding that the contract itself had not terminated, in that the Court repeatedly refers to "existing" agreements.

The Ninth Circuit seems to be the only appellate authority that has considered the ruling in FEC and nevertheless permitted what was deemed to be a termination clause to free a carrier from all provisions of a collective bargaining agreement after an impasse, including those which had not been the subject of a § 6 notice. International Association of Machinists and Aerospace Workers v. Reeve Aleutian Airways, Inc., 469 F.2d 990 (9th Cir.1972), aff'g 330 F.Supp. 332 (D.Alaska 1971), cert. denied, 411 U.S. 982, 93 S.Ct. 2273, 36 L.Ed.2d 958 (1973). The Reeve ruling is rather summary, however, simply noting that FEC was distinguishable without considering its rationale. Nonetheless, this court might feel bound to follow Reeve as a controlling appellate precedent if it had not been questioned by another appellate court. See EEOC v. United Air Lines, 755 F.2d 94, 98 (7th Cir.1985) (Posner, J.). While I am not convinced that Judge Posner's criticism of Reeve is significantly more soundly reasoned than the Reeve opinion itself,³ the incipient conflict between the Seventh and Ninth Circuits, and the absence of Eighth Circuit appellate precedent, require that I undertake a more detailed analysis of the issue. I am not persuaded by TWA's contention that Reeve should be afforded controlling precedential effect because certiorari was denied.⁴

TWA concedes that it is baffled by FEC's vigorous language regarding what the Act itself requires, but argues that it should be disregarded as dicta. The holding in FEC is admittedly concealed in strong language without an explicit statement of conclusions. It would have been quite simple, however, to avoid giving the eloquent lecture about the purposes of the Act if the Court had viewed the agreement between the parties as the controlling factor. Moreover, even if properly labelled as dicta, it is carefully considered dicta that a single trial judge should almost always treat as binding. That has been my practice, Powell v. Kovac's, Inc., 596 F.Supp. 1520, 1524 (W.D.Mo.1984), and I believe it to be standard. See, e.g., United States v. Kahn, 251 F.Supp. 702, 708 (S.D.N.Y.1966). The pertinent language is not a casual remark or "very brief statement," but the major thrust of the FEC opinion. Cf. Anheuser-Busch, Inc. v. Stroh Brewery Co., 750 F.2d 631, 636 (8th Cir.1984) (indicating that a...