[00:00:02] Speaker 04:
All right.

[00:00:03] Speaker 04:
Good morning and welcome.

[00:00:04] Speaker 04:
You have 15 minutes.

[00:00:05] Speaker 04:
How much time would you like to reserve for rebuttal?

[00:00:08] Speaker 03:
I'd like to reserve four minutes for rebuttal, please.

[00:00:11] Speaker 04:
All right.

[00:00:11] Speaker 04:
Go ahead, please.

[00:00:12] Speaker 03:
Good morning, and may it please the court.

[00:00:14] Speaker 03:
I'm Matt Gilliam, and I represent the appellant, Ollie Barerman.

[00:00:19] Speaker 03:
When this court held in Clemens that all agency fee requirements must conform to section 152.11 of the Railway Labor Act, the RLA, to be valid and enforceable,

[00:00:32] Speaker 03:
This court explained that Congress enacted the 11th pre-viso to prevent employers and unions from abusing their power under Section 52-11, the power which they wielded over workers like Ali Bahraman.

[00:00:47] Speaker 03:
The Supreme Court said in street it also recognized that 11th was narrowly tailored to safeguard workers' rights.

[00:00:56] Speaker 03:
This case is about the intolerable effects on workers when employers and unions

[00:01:01] Speaker 03:
ignore this court's warning in Clemens and abuse their power.

[00:01:05] Speaker 05:
Let me ask specifically about Clemens, though, because as I read that, it's talking about restricting or regulating the conditions of termination, correct?

[00:01:18] Speaker 03:
Your Honor, yes.

[00:01:18] Speaker 03:
Clemens address the requirement that an agency fee requirement must conform to Section 152, 11th day.

[00:01:27] Speaker 03:
And there are probably several elements within Section 150 to 11A, an agreement has to meet to be protected, and termination is certainly one of those.

[00:01:40] Speaker 05:
But where I kind of fall short then, I don't think Clemens is exactly on point.

[00:01:46] Speaker 05:
I think it's a flavor, and it talks about termination.

[00:01:50] Speaker 05:
But my question is, it seems to me you're arguing that Section 211

[00:01:56] Speaker 05:
says that the only penalty for nonpayment is termination.

[00:02:01] Speaker 05:
And as I read that, that's like inserting a new criteria that's not in there.

[00:02:06] Speaker 05:
How do you square that?

[00:02:08] Speaker 03:
Right.

[00:02:08] Speaker 03:
Well, there are a couple of important responses to that.

[00:02:13] Speaker 03:
The first one is that section 152.11a is an exception to the RLA's general prohibition of agency fee requirements in section 152.4.

[00:02:25] Speaker 03:
And as a statutory exception, and Section 152, 11th D marks it as an exception to 4th, Section 152, 11th A, as an exception, needs to be read as limited to the expressed terms of the exception.

[00:02:45] Speaker 04:
But what's your best authority for that?

[00:02:47] Speaker 03:
This Court's precedence.

[00:02:48] Speaker 04:
If Congress enacts a statute that says we find this type of contract lawful, that there's an implicit

[00:02:55] Speaker 04:
prohibition on anything else that is similar but includes a lesser penalty.

[00:03:00] Speaker 04:
What's the best authority for that?

[00:03:02] Speaker 03:
This court's decision in Syed, which we've cited in our briefs and it cites to other Supreme Court cases and it says

[00:03:09] Speaker 03:
The inclusion of one thing in a statutory exception excludes the other.

[00:03:14] Speaker 03:
And Section 152, 11th A itself says that the agreements that employers and unions shall be permitted to make are those that require agency fee payments as a condition of continued employment.

[00:03:31] Speaker 03:
That is what creates the termination.

[00:03:33] Speaker 04:
Does that make sense that if Congress said you can fire somebody, that that would not allow them to do something lesser?

[00:03:39] Speaker 04:
Well, no, Your Honor, this is something- Is this the reason that you would allow a union or employer to fire somebody, but not allow them to do a lesser penalty if they don't pay their agency fees?

[00:03:51] Speaker 03:
Well, the reason beyond the statutory intent and Congress's purpose, the Supreme Court explained this in Street, and it said the obvious purpose of this careful prescription was to strike a balance between union security interests

[00:04:07] Speaker 03:
and, quote, the claims of the individual to be free of arbitrary or unreasonable restrictions resulting from compulsory unionism.

[00:04:16] Speaker 03:
And the point of this language is that it shouldn't be

[00:04:25] Speaker 03:
easy for the union just to be able to, the employer and the union, to take away employee benefits because then you start to violate the duty of fair representation and the RLA's exclusive representation scheme starts to unravel.

[00:04:41] Speaker 03:
The Supreme Court's recognized in a case like Radiance.

[00:04:43] Speaker 04:
But Street just said the union can't use this money for political causes and you're not asserting that the CBA here allows that, right?

[00:04:51] Speaker 04:
The CBA specifically has a lower agency fee

[00:04:55] Speaker 04:
because it doesn't require non-union members to pay for the union's political activities, right?

[00:05:00] Speaker 03:
Well, Judge Coe, Ellis and Street definitely said that, but what they also said is Ellis held that unions can't require non-members to make any fee contributions without a Section 152.11a union security agreement, and Street said the same.

[00:05:16] Speaker 02:
Then we've said that, in several other cases, have said that agency fee agreements are fine.

[00:05:23] Speaker 02:
This isn't about compulsory membership in a union.

[00:05:26] Speaker 02:
This is about agency fees and while that's not directly covered by 11th, you have a lot of authority against you on whether it permits such agreements.

[00:05:35] Speaker 03:
So Section 152-11D says, and I'd like to quote it, any provisions in paragraphs fourth and fifth of this section in conflict herewith are to the extent of such conflict amended.

[00:05:48] Speaker 03:
And what that means is that unless and until the union and employer enter into a Section 152-11th union security agreement as a condition of employment,

[00:06:00] Speaker 03:
it can't charge any agency fees.

[00:06:03] Speaker 03:
And the reason why we know Section 152-4th prohibits agency fee requirements, this court recognized in Clemens that it does.

[00:06:14] Speaker 03:
It said that before the 11th Amendment, 2-4th, the RLA prohibited both union shop requirements for employees to join the union and

[00:06:25] Speaker 03:
agency shop requirements for nonmembers to pay a union service charge.

[00:06:29] Speaker 02:
Okay, what in fourth does that work?

[00:06:31] Speaker 02:
Which words would you point us to in fourth that is requiring that exception for agents fee agreements enforceable short determination?

[00:06:40] Speaker 03:
the prohibition against influencing and coercing employees in an effort to induce them to join or remain members.

[00:06:49] Speaker 02:
But these are agency fees.

[00:06:52] Speaker 02:
Your client is not being forced to become a member.

[00:06:56] Speaker 03:
But all of these cases, Ellison Street included,

[00:07:00] Speaker 03:
recognize that membership is a legal concept that has been whittled down to its financial core.

[00:07:09] Speaker 03:
And what that means is a prohibition against any requirement that they pay agency fees without a section 152, 11th day agreement.

[00:07:18] Speaker 02:
But doesn't that then prove too much with respect to 11th?

[00:07:21] Speaker 02:
You've referred to union security agreements, but you can see that union security agreements, whatever is covered by 11th,

[00:07:29] Speaker 02:
unions and carriers are allowed to enter into agency fee agreements that do not require membership as a condition?

[00:07:37] Speaker 03:
No, under Ellis, the Supreme Court has said that unions and employers can't require objecting nonmembers to pay any fees to a union without a Section 152.11.

[00:07:51] Speaker 02:
But I guess the members,

[00:07:54] Speaker 02:
you seem to be reading members broadly in fourth, and then quite narrowly in eleventh.

[00:08:00] Speaker 02:
Eleventh does speak directly to membership, and you're saying, well, that would preclude an agency fee agreement, such as we have here, but why shouldn't we read members as broadly in eleventh as we are in fourth?

[00:08:10] Speaker 03:
So, again, I would point the court to section 152, eleventh D, which says that, really, 152, eleventh is an amendment to fourth.

[00:08:24] Speaker 04:
But you would agree that the Supreme Court in NLRB versus General Motors specifically approved these agency fees because it says it prevents employers and unions from forcing people to join a union, but also addresses the free rider problem.

[00:08:39] Speaker 04:
So the Supreme Court has already approved these types of agreements.

[00:08:43] Speaker 04:
You would agree with that, wouldn't you?

[00:08:45] Speaker 03:
Your Honor, agency fee agreements are permissible, but they have to meet the requirements of Section 152.11a.

[00:08:54] Speaker 03:
And that's what these cases all show.

[00:08:56] Speaker 03:
They can't charge any agency fees without a section 150 to 118.

[00:09:01] Speaker 02:
And your interpretation of that, going back to Judge Koh's question, is that they are only valid if they have termination as the sole sanction for noncompliance?

[00:09:14] Speaker 03:
That's correct, Your Honor.

[00:09:15] Speaker 02:
How does that make sense?

[00:09:16] Speaker 05:
Where does that come from?

[00:09:18] Speaker 03:
So when Congress enacted the amendment

[00:09:23] Speaker 03:
It said that it was only allowing this membership requirement that gives rise to agency fees under certain conditions.

[00:09:34] Speaker 03:
And Street said that 11th did not give a blanket approval to union shop agreements.

[00:09:41] Speaker 03:
and was placing a precise and carefully drawn limitation on what might be made.

[00:09:47] Speaker 03:
In addition to authorizing employers and unions to enter into these agreements, 11th is also a safeguard for workers' rights.

[00:09:57] Speaker 03:
What it does is it allows them

[00:09:59] Speaker 03:
It protects them by preventing employers and unions from doing exactly the intolerable thing that Allegiant and TWU did in this case, which was taking away seniority, which this court in Addington recognized is immensely invaluable to employees.

[00:10:21] Speaker 04:
So it's no small thing that- If the CBA created the seniority rights,

[00:10:29] Speaker 04:
You would agree that it did, right?

[00:10:30] Speaker 04:
It created these seniority rights that are applicable in this particular employment situation.

[00:10:34] Speaker 03:
That's correct.

[00:10:35] Speaker 04:
Then why wouldn't they require that anyone who gets the benefit of that seniority right and privilege make some contribution for the cost of negotiating and entering into that CBA?

[00:10:49] Speaker 04:
Why should your client be able to be a free rider is really the ultimate question.

[00:10:53] Speaker 03:
Congress authorized employers and unions to enter into those agreements, but they did so under very narrowly drawn, limited circumstances.

[00:11:04] Speaker 03:
So what the employer and union can't do here is not enter into the prescribed Section 152, 11th A agreement and start levying fees and taking away seniority-based benefits if the employee doesn't pay those fees.

[00:11:22] Speaker 03:
because it doesn't satisfy the, as a condition of continued employment.

[00:11:26] Speaker 02:
But 11th, so just to understand this, I believe you're treating 11th as prohibitive or prescriptive, but the only thing 11th says, along with the fact that it's an exception of 4th, is that it's permissive.

[00:11:41] Speaker 02:
And then you turn to, well, it's an exception from 4th, which generally prohibits coercion.

[00:11:48] Speaker 02:
But then it's coercion of membership.

[00:11:49] Speaker 02:
And again, we have cases that say that in both these cases, we're to read that as including agency fees.

[00:11:54] Speaker 02:
So it can't be 11th that's prohibiting anything here.

[00:11:58] Speaker 02:
Where should we look here for the prohibition that you're seeking to enforce?

[00:12:03] Speaker 03:
Section 152-4.

[00:12:04] Speaker 03:
And really, 152-4 and 11th are interrelated.

[00:12:10] Speaker 03:
11th D is the provision in the text that shows that.

[00:12:14] Speaker 03:
And as you said, and as Hanson said,

[00:12:17] Speaker 03:
uh... the supreme court uh... that these agreements are permissive and unless and until the employer in the union enters into a section one fifty two eleventh agreement force continues force prohibition on any fees continues in full force in effect and uh... and the other thing we should look to is radio officers uh... which says that uh...

[00:12:45] Speaker 03:
And radio officers, I realize, is a Section 883 case of the National Labor Relations Act.

[00:12:52] Speaker 03:
But we also know under Beck that 11th was modeled after it, and Justice Brennan and Beck said that they are statutory equivalents.

[00:13:01] Speaker 03:
But my point on radio officers is that the court said that requiring employees to pay any union dues or agency fees

[00:13:14] Speaker 03:
increases the quantum of desire to be a member.

[00:13:19] Speaker 03:
So levying these agency fee requirements is unlawful inducement and coercion to make these people join a union.

[00:13:31] Speaker 03:
A radio officer says that, and we've quoted.

[00:13:33] Speaker 03:
I see that I'm into my time here.

[00:13:36] Speaker 04:
All right.

[00:13:36] Speaker 04:
You have a minute 44 seconds left.

[00:13:51] Speaker 01:
Please to the court, Andrew McClintock, Ford Harrison for Allegiant Air.

[00:13:58] Speaker 01:
For the purposes of timing, I have 10 minutes to address counts one and two, and co-counsel from TW is going to be addressing count three, which is the DFR claim.

[00:14:14] Speaker 01:
So I'd like to start with some of the issues that

[00:14:20] Speaker 01:
opposing counsel raised and those direct relate most directly to, I think is just an overreach for the interpretation of the various cases.

[00:14:34] Speaker 01:
And let's start with this.

[00:14:36] Speaker 01:
Everybody agrees that section 29 of the collective bargaining agreement is not a union security clause.

[00:14:49] Speaker 01:
the plaintiffs look at Clemens, which is about a union security clause and says, this controls.

[00:14:56] Speaker 01:
You cannot have a case about a union security clause dictating outcome of an agreement that is not a union security clause.

[00:15:05] Speaker 01:
This agreement is about seniority and about incentivizing- So what's the best authority for the opposite?

[00:15:13] Speaker 04:
If Congress enacts a statute that explicitly

[00:15:16] Speaker 04:
says this particular type of contract is lawful, then what is your best authority to say, well, then there's a lot of implied approval of similar contracts.

[00:15:29] Speaker 04:
that have different penalties.

[00:15:30] Speaker 04:
What's your best authority for that proposition?

[00:15:33] Speaker 01:
So I think I would look at the entire structure of the Railway Labor Act, which leads to companies and unions broad discretion to resolve the disputes between them in the manner that they see fit.

[00:15:46] Speaker 02:
Mr. McClintock, I guess I'd like to draw your attention to a follow-up on Judge Coe's question.

[00:15:51] Speaker 02:
Looking at the fourth, why isn't this an agreement, if it's not covered as a union security agreement under 11th, why isn't it an agreement to deduct from the wages of employees fees payable to labor organizations that's explicitly prohibited by fourth?

[00:16:10] Speaker 01:
Because what plaintiff describes as the proper interpretation of Section 2-4th has no support at all.

[00:16:20] Speaker 01:
Their position is that there is this term of art where membership in Section 2-4th means not only membership, but an obligation to pay an agency fee.

[00:16:31] Speaker 01:
And what the legislative history and the timing of the various pieces of the statute will tell you is there's no foundation for that.

[00:16:39] Speaker 01:
Section 2-4th, we came into the Railway Labor Act in 1934, and you can look at Street and I believe TWA versus IFA, and they both describe this.

[00:16:56] Speaker 01:
There was, in the early days of the statute, a problem with company unions where the employer was coercing, leveraging employees to not join the independent national union, but to be a member of the company union.

[00:17:14] Speaker 01:
That is the history underlying two-fourth.

[00:17:20] Speaker 01:
But then you look at section 211.

[00:17:22] Speaker 01:
211 didn't come in until 1951.

[00:17:26] Speaker 01:
And the cases like Street.

[00:17:36] Speaker 01:
So Street was 19.

[00:17:37] Speaker 02:
I guess just to, this is helpful, but to focus this.

[00:17:42] Speaker 02:
When you say that this is not a union security agreement, are you saying that it's not within the exception provided by 11th?

[00:17:50] Speaker 01:
So Section 211 isn't an exception.

[00:17:55] Speaker 02:
That's what it says in D. It's an exception from 4th and 5th.

[00:18:01] Speaker 01:
It depends on what you mean an exception to.

[00:18:03] Speaker 01:
OK.

[00:18:03] Speaker 01:
OK.

[00:18:04] Speaker 01:
So counsel said it was an exception to the anti-union or the freedom to organize, freedom to join or not join the union.

[00:18:17] Speaker 01:
You have to look at Section 211 for what it is and what it was intended to do.

[00:18:24] Speaker 01:
The prior version of the statute, prior to 1951, forbade union security.

[00:18:32] Speaker 02:
Okay, but it also did it not forbid the employer's deduction of wages for any fees payable to a labor organization?

[00:18:42] Speaker 02:
I think that's what, so in Clemens, for example, we suggest, and there's some question about, but in Clemens we say that prior to 1951, agency fee agreements were also prohibited.

[00:18:52] Speaker 02:
And so I think your friend says, then we must look into 11th to see just what agency fee agreements are provided.

[00:19:00] Speaker 01:
They could not be required.

[00:19:03] Speaker 01:
It's not that you couldn't have them.

[00:19:04] Speaker 01:
They couldn't be required.

[00:19:06] Speaker 02:
Okay.

[00:19:06] Speaker 02:
And what is the status of section 29 here?

[00:19:09] Speaker 02:
Is that not a requirement on Mr. Behrman?

[00:19:12] Speaker 01:
No.

[00:19:16] Speaker 01:
So the question, and this is one of the points I was going to make.

[00:19:18] Speaker 02:
And that's because he can't be terminated, but there can be lesser sanctions.

[00:19:22] Speaker 02:
What makes it not a requirement?

[00:19:23] Speaker 01:
So plaintiffs in their papers say repeatedly that the plaintiff was required to do this.

[00:19:31] Speaker 01:
He was required to pay an agency fee.

[00:19:33] Speaker 01:
He wasn't required to pay an agency fee.

[00:19:36] Speaker 01:
He had an absolute free choice to join the union, pay dues,

[00:19:43] Speaker 01:
not join the union and pay an agency fee or be a free rider and there were consequences associated with that.

[00:19:52] Speaker 01:
But nobody made him pay agency fee because he didn't.

[00:19:59] Speaker 05:
How do you think these dual unionism cases play into the interpretation here?

[00:20:05] Speaker 01:
So the dual union cases

[00:20:09] Speaker 01:
are really the prime authority and we have decisions from the seventh, the eighth district courts and the third and the second.

[00:20:23] Speaker 01:
And I gotta say the Eastern District of Pennsylvania, obviously lower court, but it is a really thorough discussion of all the proceeding cases.

[00:20:32] Speaker 01:
But those cases stand for the proposition that section 29 of the TWU Allegiant Agreement is not a union security clause.

[00:20:41] Speaker 01:
And that the parties have the ability to enter into an agreement that uses seniority as a lever of sorts to induce or incentivize employees to not be free riders, to pay an agency fee.

[00:21:00] Speaker 01:
But they make it clear that

[00:21:03] Speaker 01:
It doesn't require them to do anything.

[00:21:06] Speaker 01:
They have the choice to be a member, pay dues, whatever it may be, to one union and

[00:21:18] Speaker 04:
So the first, the seventh and the eighth circuit cases were post certification cases where there was the requirement of the showing of anti-union animus for a section two violation.

[00:21:30] Speaker 04:
Would we need to make that same kind of finding here?

[00:21:34] Speaker 04:
Can you rule in favor of the respondents without that context?

[00:21:41] Speaker 01:
without the context of the post-certification?

[00:21:43] Speaker 04:
It being a post-certification where a required showing of anti-union animus is there to make a Section 2 violation claim.

[00:21:52] Speaker 01:
I think it is a basis upon which to rule for Allegiant in TWEU, but it is not a necessary element because what we don't have in this case.

[00:22:02] Speaker 04:
So how would you apply that here?

[00:22:04] Speaker 04:
This is post-certification, is that correct?

[00:22:06] Speaker 01:
Correct.

[00:22:07] Speaker 04:
It's post-certification and you would say what?

[00:22:09] Speaker 04:
There's no showing of anti-union animus or what?

[00:22:12] Speaker 01:
In the normal post-certification context and under TWE versus EFA.

[00:22:19] Speaker 01:
in order to have a viable claim under section two fourth there has to be some action which is fundamentally detrimental to the collective bargaining agreement or the collective bargaining process or that undermines the union.

[00:22:33] Speaker 01:
And that's not what we have here.

[00:22:35] Speaker 01:
And I mean one of the things that's to me very ironic about this case is what we're talking about is a provision in the collective bargaining agreement that was

[00:22:45] Speaker 01:
negotiated by the parties, ratified by the membership.

[00:22:50] Speaker 01:
How do you have a Section 2-4th claim arising from an agreement that has been ratified by the parties?

[00:22:57] Speaker 01:
Now, you may be able to have a Section 2-4th claim under egregious circumstances where the application of a provision and agreement

[00:23:11] Speaker 01:
shows some kind of invidious discrimination against a plaintiff.

[00:23:15] Speaker 01:
But we're not talking about any particular application of the agreement here.

[00:23:20] Speaker 01:
We're talking about the words in the collective bargaining agreement that they contend violate sections before.

[00:23:25] Speaker 02:
And so your view is fourth's prohibition on deduction of fees from wages must be read as compulsory upon termination deduction of

[00:23:35] Speaker 01:
Your Honor, the first thing I would say is Section 2-4 prohibits coercion to join, not join, remain, or not remain member of a union.

[00:23:47] Speaker 01:
It doesn't say anything.

[00:23:49] Speaker 01:
about paying an agency fee.

[00:23:53] Speaker 02:
Why does that not say that just after?

[00:23:56] Speaker 05:
It says assist in the collection of agency fees.

[00:23:59] Speaker 01:
In section two fourth.

[00:24:00] Speaker 02:
Yes.

[00:24:01] Speaker 02:
Yes.

[00:24:01] Speaker 02:
I'm trying to get you to go past the comma that is the focus here.

[00:24:04] Speaker 02:
You can't make employees join the union, but you also, and a carrier, cannot deduct from the wages of employees any fees payable to labor organizations or assist in them.

[00:24:19] Speaker 01:
There's, well, there's the section, Section 211B, I believe, that says you can have a dues checkoff.

[00:24:28] Speaker 02:
But only, but you're saying it's not covered, so I guess, is 29 covered by 11th B?

[00:24:34] Speaker 01:
That provision, yes.

[00:24:37] Speaker 01:
Okay.

[00:24:37] Speaker 01:
So Section 211A only addresses the genuine requirement

[00:24:46] Speaker 01:
to join the union.

[00:24:47] Speaker 01:
Then there's been a gloss put over it in Street to say that has to reach people who don't become members because there's the constitutional question that you can't compel somebody, Freedom Association, to join the union.

[00:25:01] Speaker 01:
But what the cases of Street and Ellis, for example, tell us is that

[00:25:10] Speaker 01:
Under Section 211, you can't compel somebody to join the union, but you can compel them, genuinely compel them to pay an agency fee.

[00:25:21] Speaker 01:
That's what Section 211A reaches.

[00:25:24] Speaker 04:
What's at stake here?

[00:25:25] Speaker 04:
How would Allegiant Air or the union be disadvantaged by not having these lesser penalties?

[00:25:32] Speaker 04:
Why wouldn't you just have everyone get terminated if they don't pay their agency fees?

[00:25:35] Speaker 01:
So that goes back to

[00:25:39] Speaker 01:
the negotiation of the agreement and, frankly, the rationale that belies the Section 2-4th claim.

[00:25:48] Speaker 01:
The case history will show that when Allegiant and TW were negotiating the collective bargaining agreement,

[00:25:55] Speaker 01:
Allegiant was of the view that it didn't want its flight attendants to be required to join the union or pay an agency fee.

[00:26:04] Speaker 01:
It was strongly opposed to union security.

[00:26:07] Speaker 01:
And only at the very end of negotiations was there eventually an agreement reached to allow this provision to induce or discourage somebody from being a free rider.

[00:26:23] Speaker 01:
But Allegiant proposed that so that somebody like the Grievant had the choice that he could decide, I don't want to join the union, I don't want to pay an agency fee.

[00:26:36] Speaker 01:
There may be consequences associated with that, but I have free will.

[00:26:42] Speaker 01:
to decide whether I'm going to join the union, pay an agency fee, or be a free rider.

[00:26:48] Speaker 01:
It wasn't to discriminate against him, it was to benefit him.

[00:26:52] Speaker 01:
He had three choices rather than two.

[00:26:56] Speaker 01:
But one of the things I'm trying to get back to, the idea of the Section 2-4 includes this prohibition against paying an agency fee.

[00:27:08] Speaker 01:
The whole notion of an agency fee didn't arise until

[00:27:13] Speaker 01:
60s, when Street was issued, where the court said, you know, the radio officers, I do think that case is not favorable to your position.

[00:27:24] Speaker 04:
Why is the text of the NLRA not applicable here or informative here for the RLA?

[00:27:32] Speaker 01:
So the text of the NLRA has that particular provision that

[00:27:44] Speaker 01:
refers to discrimination with regard to any term or condition of employment.

[00:27:49] Speaker 01:
And there's no analog to that in the Railway Labor Act.

[00:27:57] Speaker 01:
And that kind of gets us to the point they made or tried to make about Addington.

[00:28:06] Speaker 01:
I don't think anybody would dispute that if TW and Allegiant put in their collective bar agreement a provision that says somebody who joins the union accrues

[00:28:16] Speaker 04:
Wait, don't you think 11th has a non-discrimination provision that says that no such agreement shall require such condition of employment with respect to employees to whom membership is not available upon the same terms and conditions as are generally applicable to any other member, or with respect to employees whom membership was denied or terminated?

[00:28:35] Speaker 04:
I mean, that kind of has a flavor of a non-discrimination provision?

[00:28:39] Speaker 01:
It has that flavor, but the language in Section 211th

[00:28:46] Speaker 01:
Section 8-2, maybe?

[00:28:51] Speaker 01:
I'm much more familiar with the RLA, I will say.

[00:28:56] Speaker 01:
But Section 2-11 very much echoes particular language in the National Labor Relations Act, but that reference to the terms of conditions employment isn't one of them.

[00:29:07] Speaker 01:
And I'm particularly focused on Section 2-4.

[00:29:10] Speaker 01:
Because what I'm trying to get back to is they rely on this notion that Section 24th prohibits a unit security clause.

[00:29:18] Speaker 01:
I'm sorry, prohibits an agency fee.

[00:29:22] Speaker 01:
But Section 24th was enacted before the idea of an agency fee ever came up.

[00:29:29] Speaker 01:
That didn't come up until Street, where the Supreme Court said, we can't require employees who don't support the union to make the same contribution.

[00:29:40] Speaker 01:
And then Ellis kind of defined the line between what's germane to their collective bargaining obligations and what isn't.

[00:29:48] Speaker 01:
So it's really not until Street and Ellis that you really get the whole notion of an agency fee.

[00:29:55] Speaker 01:
which is obviously decades after Section 2-4th was passed.

[00:30:00] Speaker 01:
2-4th could never have been implemented, ratified by Congress, signed by the President with some contemplation of an agency fee.

[00:30:08] Speaker 04:
You're 50 seconds over your time.

[00:30:10] Speaker 04:
Let me see if my colleagues have any other questions for you.

[00:30:13] Speaker 04:
No?

[00:30:13] Speaker 04:
Okay.

[00:30:13] Speaker 04:
Thank you.

[00:30:23] Speaker 00:
Good morning, Your Honors.

[00:30:25] Speaker 00:
Osana Rind on behalf of the Transport Workers Union Local 577, the AFL-CIO with the law firm of Phillips, Richard and Rind.

[00:30:33] Speaker 00:
I want to address count three of the complaint and the argument that Mr. Barman has made that this provision, section 29 of the collective bargaining agreement violates the union's duty of fair representation.

[00:30:46] Speaker 00:
Of course, the union agrees that it's bound by a duty of fair representation not to act in a manner that's discriminatory, arbitrary, or in bad faith.

[00:30:56] Speaker 00:
But as the district court found, and as is clear by the language of Section 29, that provision doesn't discriminate, as Mr. Barrowman has alleged in his complaint, between members and nonmembers.

[00:31:08] Speaker 00:
It treats members and nonmembers precisely the same way.

[00:31:12] Speaker 00:
Many of the cases that he cited, I believe including Radio City, of course, there's a plenary of cases that say that a union cannot enter into a collective bargaining agreement that discriminates, frankly, on any term,

[00:31:24] Speaker 00:
based on membership or non-membership, let alone seniority.

[00:31:28] Speaker 00:
But here, if a union member fails to pay their union dues, their privilege to bid based on seniority is suspended.

[00:31:38] Speaker 00:
And if a non-member fails to pay his or her agency fees, that person's bidding privileges by seniority is likewise suspended.

[00:31:48] Speaker 00:
They're treated exactly the same.

[00:31:51] Speaker 00:
I believe that the appellant cites cases like Addington

[00:31:54] Speaker 00:
for the proposition that you can't discriminate based on seniority.

[00:31:58] Speaker 00:
But it's not enough.

[00:31:59] Speaker 00:
It's not enough to show that a provision of the collective bargaining agreement differentiates between groups of employees.

[00:32:06] Speaker 00:
The basis of that distinction has to be something that is irrational or invidious.

[00:32:11] Speaker 00:
It cannot discriminate, for example, based on race, based on sex, or based in Addington specifically on political animus or political expediency.

[00:32:21] Speaker 00:
But there is no case that says that you cannot differentiate between some kind of benefit in the collective bargaining agreement based on being a non-payer of either union dues or agency fees.

[00:32:34] Speaker 00:
And in fact, you know, the fact that section 11A, 211A of the RLA and in other federal statutes and courts recognize that a union has a legitimate interest, I believe, as was mentioned,

[00:32:50] Speaker 00:
in ensuring that individuals who gain a benefit from this collective bargaining process, as Barrowman certainly did here in the collective bargaining agreement's ability to bid by seniority and have other things by seniority, that that agency fee or fair share payment is something that is rational and something that is legitimate for the union to do.

[00:33:16] Speaker 00:
Thank you.

[00:33:18] Speaker 04:
All right.

[00:33:18] Speaker 04:
No questions?

[00:33:19] Speaker 04:
Then thank you very much.

[00:33:29] Speaker 03:
Thank you.

[00:33:30] Speaker 03:
The first thing I'd like to mention is that the Supreme Court recognized that it's termination that's required under Section 152, 11th, and not efforts to induce.

[00:33:46] Speaker 03:
Eliminating free riders was Congress's purpose.

[00:33:48] Speaker 03:
If you look at all of the congressional testimony, all of the cases cited, they all refer to eliminating free riders.

[00:33:54] Speaker 03:
Street and Hansen said that the question what is your end game here?

[00:33:59] Speaker 04:
So you want to say that they have to be terminated and then you're going to bring a challenge under two-fourth.

[00:34:04] Speaker 04:
No, because telling a union membership.

[00:34:07] Speaker 04:
No, you're on game here.

[00:34:08] Speaker 03:
I just want to sure that the point is is that if they cannot reach an agreement as a condition of continued employment,

[00:34:15] Speaker 03:
That means that their agreement is unlawful and unenforceable.

[00:34:20] Speaker 03:
Barrowman, it did harm Barrowman contrary to the Pelley's representation.

[00:34:26] Speaker 05:
Why does he want to be terminated?

[00:34:27] Speaker 05:
He quit though, correct?

[00:34:29] Speaker 03:
He did ultimately leave, but he- Okay, so he leaves- For several years- Wait just a minute.

[00:34:33] Speaker 05:
Sure.

[00:34:35] Speaker 05:
What does he get out of this?

[00:34:36] Speaker 05:
Some kind of retroactive recalculation of what his seniority would have been?

[00:34:42] Speaker 03:
Well, we have to, the court below.

[00:34:44] Speaker 05:
He's asking you, what would he get?

[00:34:46] Speaker 03:
The court below bifurcated the phase on damages.

[00:34:48] Speaker 05:
I understand.

[00:34:48] Speaker 03:
And so he lost lucrative flight assignments because, as this court said in Addington, seniority is a zero-sum game.

[00:34:56] Speaker 03:
And so he had new hires.

[00:34:57] Speaker 03:
For several years, he was at the bottom of the seniority list, dropped from the 50th to 60th percentile to zero.

[00:35:03] Speaker 03:
And he lost lucrative flight assignments and benefits.

[00:35:06] Speaker 03:
And he'd like to see the monetary value of that back.

[00:35:09] Speaker 03:
The dual unionism cases, by the way, are totally irrelevant.

[00:35:15] Speaker 03:
They've never been applied to a single union context, and that's important because in the single union context, they're coercive.

[00:35:24] Speaker 03:
That sort of arrangement would be coercive.

[00:35:26] Speaker 03:
The dual union employees had options.

[00:35:29] Speaker 03:
They were basically paying for insurance in the event that they returned to their former units.

[00:35:34] Speaker 02:
Mr. Gilliam, what do you say to your friend's argument that this is not coercive either, that your client has options, so it doesn't come within fourth at all?

[00:35:44] Speaker 03:
They, so it's coercive because they demanded, they exercised their collective economic power to demand that he pay, contribute money to the union, or lose your seniority, and they took away his seniority.

[00:35:59] Speaker 02:
That's true of lots of conditions of employment on employees, is it not?

[00:36:04] Speaker 03:
But they can't require contributions to the union, that violates forth.

[00:36:08] Speaker 03:
The only way they can do it

[00:36:10] Speaker 03:
The only way that Congress authorized is under Section 152-11A, Union Security Agreement, and Section 152-11D shows that, and so do all the Supreme Court cases and this Court's case Clemens.

[00:36:26] Speaker 04:
So you argue that the dual unionism cases shouldn't apply when you're suing both an employer and a union?

[00:36:33] Speaker 03:
That's correct.

[00:36:33] Speaker 04:
Because you think then that the administrative decision-making body would be biased, because it would include a representation of the employer and the union?

[00:36:42] Speaker 04:
Am I understanding your argument correctly?

[00:36:43] Speaker 04:
Well, Your Honor, you're referring specifically... Where is there any authority that supports that distinction?

[00:36:47] Speaker 03:
So, Your Honor, you're referring specifically to the post-certification bar.

[00:36:52] Speaker 03:
that's applied to major and minor disputes.

[00:36:54] Speaker 03:
This is neither.

[00:36:55] Speaker 03:
This is a statutory rights enforcement action.

[00:36:57] Speaker 04:
No, I'm referring to your argument and your briefs that say the dual unionism cases don't apply here because unlike them where it's a union suing a union or we are a employee that is suing both an employer and a union and that that distinction matters.

[00:37:11] Speaker 04:
So my question is why does that distinction matter?

[00:37:14] Speaker 04:
What authority tells me that that distinction matters?

[00:37:17] Speaker 03:
Well, I think that the distinction, so I don't think either the employer or the union could require Mr. Balraman to pay agency fees without a Section 152-11th agreement.

[00:37:31] Speaker 04:
You know, the post-certification distinction arises because- No, I'm asking about the distinction that you made in your briefs, why it shouldn't apply here because you're suing two entities.

[00:37:41] Speaker 04:
Why is that relevant?

[00:37:43] Speaker 03:
I see.

[00:37:43] Speaker 03:
So this is a major minor dispute that's not subject to arbitration from the employees.

[00:37:49] Speaker 03:
But I think that the fact that they were both acting together shows that this is economic coercion, which is prohibited, RLA prohibited coercion and influence if you looked at the Supreme Court precedent on that.

[00:38:02] Speaker 03:
like the Texas NOR case we cited.

[00:38:06] Speaker 03:
So this is a pure statutory rights enforcement action.

[00:38:11] Speaker 03:
Just as Clemens recognized, there's no post-certification bar.

[00:38:16] Speaker 03:
Barman can exercise his rights under 11th and 4th, consistent with Clemens.

[00:38:21] Speaker 03:
So I don't think it really matters, to get back to your original question, I don't think that it really matters whether he was suing one or the other.

[00:38:27] Speaker 03:
I think the point that I was trying to make there, Your Honor, is just that

[00:38:32] Speaker 03:
It's a sub-point that you can't have a post-certification bar where both the employer and the union are antagonistic to his rights, basically aligned on the other side of his rights.

[00:38:48] Speaker 03:
But this is a statutory rights enforcement case.

[00:38:51] Speaker 03:
So the post-certification bar doesn't apply, and that's recognized by almost 80 years of Supreme Court precedent in cases where no post-certification bar was enforced.

[00:39:00] Speaker 03:
And I should point out, too, that the district court didn't rule that it applied.

[00:39:04] Speaker 04:
So you're almost four minutes over your time.

[00:39:06] Speaker 04:
Let me see if my colleagues have any further questions for you.

[00:39:10] Speaker 04:
No?

[00:39:10] Speaker 04:
OK.

[00:39:10] Speaker 04:
Thank you all, and thank you to everyone for your helpful arguments.

[00:39:13] Speaker 04:
Thank you very much.