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"And ye shall know the truth, and the truth shall make you free." - John 8:32
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Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  June 17, 2010
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Topic category:  Government/Politics

SCOTUS Should Grant Certiorari in the Lindsay Case

The question for the courts is not one of practicality or convenience, but of Congressional intent.

About a year ago I wrote about this case: Lindsay v. APFA: A Case Of Tremendous Importance To The Rule Of Law (June 11, 2009)( I write about the case again because (1) it is a prime example of a Court of Appeals making policy choices rather than legal determinations, (2) the Circuits are divided on legal issues that it involves and (3) the United States Supreme Court will soon consider whether to grant certiorari.

In Lindsay, 581 F.3d 47 (2d Cir. 2009), the Second Circuit decided that only unions have standing to sue under the Railway Labor Act, not their members, even when it is the members who have been injured. In other words, according to the Circuit, a union is not simply employees’ exclusive bargaining agent, but also their automatic and permanent alter ego. A union can assert employees’ and retirees’ claims, waive employees’ and retirees’ claims, or use their claims to accomplish institutional goals.

Any other rule, it has been suggested, would be inconvenient for unions and companies. In fact, the Second Circuit Panel that decided the case suggested at oral argument that any other result would be impractical. (I attended oral argument and have reviewed the briefs submitted to the district court, the Second Circuit and the Supreme Court.)

The question for the courts is not one of practicality or convenience, but of Congressional intent.

When Congress enacted the "status quo provisions" of the Railway Labor Act, i.e., the statutory provisions at issue in the Lindsay case, its intent was clearly to benefit employees. See, e.g., RLA Section 152 Seventh, which prohibits carriers, during certain periods, from "chang[ing] the rates of pay, rules, or working conditions of its employees."

When Congress enacted RLA Section 152 Ninth, on the other hand, its intent was just as obviously to confer a benefit on unions. That provision forbids a carrier from "treating with" anyone other than the designated agent. (To “treat with” is a quaint phrase, meaning “to bargain towards an agreement.”) Thus, Section 152 Ninth forbids a carrier to bargain collectively with anyone other than the designated union.

BUT...the fact that carriers are precluded from dealing with anyone other than the union does not mean that courts are similarly constrained. Standing to bargain and standing to sue for the violation of already-negotiated rights are two very different things. “Majority rule” clearly governs who has standing to bargain collectively; just as clearly, it does not govern who has standing to sue in court. To permit it to would be to deprive employees of vested property rights without constitutional or Congressional warrant.

Although it might at first blush appear otherwise, these are far from academic issues.

But wait a minute, you say, can’t you assume that, by becoming union members, employees implicitly consented to their union having the exclusive right to sue? So, they’re not being deprived of any rights and claims, you insist; they’ve simply given them up.

No, you cannot make that assumption. The Supreme Court expressly said you can’t make the assumption. See Elgin v. Burley, 325 U.S. 711, 740, 741 (1945), adhered to on rehearing, 327 U.S. 661 (1946). Congress subsequently forbid unions from requiring members to surrender their right to sue. 29 U.S.C. §411(a)(4). And, far from containing such a surrender, I am told the union constitution in this case, not atypically, vests ultimate authority in the membership.

There is yet another reason you can’t make the assumption. Not only are union shops permitted under the Railway Labor Act, they are prevalent. So the act of joining a labor union is not a volitional act by which employees can be deemed to have voluntarily ceded rights to a union. Once a labor organization has been “designated” by a “majority” of employees, all employees in the “craft or class” can be required to join it, if a requirement to that effect is included in a bargaining agreement. At the very least, they can be required to financially support the union.

The importance of these facts cannot be overstated. Let me explain why.

Until recently, it took 50% + 1 of those eligible to vote in a government-supervised election to designate a union as the bargaining agent. So, if the “craft or class” contained 1,000 employees, 501 would have had to vote in favor of a union for the union to become the designated agent.

Recently, the governing agency changed the rules ( Now, it only takes 50% + 1 of those who actually vote in an election to designate a union. So if, in our example, only 617 employees voted, the union could end up being designated even though only 309 employees voted in favor of it. Stated another way, as a result of the vote of 309 employees, 1,000 could end up being required to join.

This would not only include the 383 who didn't vote at all, but the additional 308 who voted against it. Or, put still another way, 309 employees would could end up requiring 691 other employees to join a union and depriving them of the right to bargain prospectively.

If the Employee Free Choice Act is passed, there won't even be an election. As long as the union gets a sufficient number of employees to sign a card indicating their interest in the union's representing them for purposes of bargaining, a union will become the agent for all by virtue of a “card count.” The question the Lindsay case asks is agent to do what? What does the agent have the exclusive power to do?

As long as employees lose no more than the right to prospectively set their individual terms and conditions of employment, Congress' calculus may be tolerable. After all, employees can theoretically always go find another job if they don't like the terms negotiated collectively. On the other hand, when that is not all employees lose because, for policy reasons, courts have reinterpreted unions' bargaining authority as including an exclusive right to sue, waive or settle claims, employees end up with nothing. Then, those same 309 employees are depriving 691 employees of contract and property rights, due process rights and access to United States courts.

But, wait, there is more, as with the Ginzu knives: The Lindsay case also raises important questions regarding statutory interpretation, federalism and separation-of-powers: Can a preemption test designed to protect the statutory framework of one statute be willy-nilly applied to another? Can a primary-jurisdiction doctrine designed to require claims be submitted to an agency be applied so as to deprive litigants of any forum? Can a judicially-constructed and very broad preemption rule be read into a statute to displace an express preemption provision of narrow scope? Can a federal common law doctrine designed to supplement state law instead be used to preempt it? Can federal common law occupy a field Congress has expressed the intent not to occupy? And, finally, can employees subject to the Railway Labor Act be deprived of the right all other employees enjoy, the right to enforce their union constitutions.

In the final analysis, the Lindsay Petitioners are asking the Court to fix the dividing line between majority rule and individual rights, the RLA and NLRA, Congressional will and federal common law, legitimate decision-making and judicial policy-making, and post-modernist preemption theories and century-old state law rights.

At present, as Petitioners have demonstrated, the Circuits are split on three of these questions. So, employees and retirees can still go into courts in the First, Fourth, Fifth, Sixth, Eighth and Ninth Circuits and bring suit under the RLA. But they can't in the Second and Third Circuits and, perhaps not in the Seventh. They can also enforce their rights under their union constitutions in some of these same Circuits. But they are remediless in the Second and Third Circuits because their claims are preempted.

So, depending on the Circuit, employees of the same employer either will be able to sue or not under the same statutory language. Similarly and, again, depending on the Circuit, members of the same union will either be able to enforce rights under their union constitution or not, depending upon the preemption rule in vogue in a particular region. In my opinion, the Supreme Court should grant certiorari to resolve this conflicting patchwork of rules and to return order, logic and equity to the field of labor law and fidelity to Congressional intent to judicial decision-making by the lower courts.

Michael J. Gaynor

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Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to,,, and and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is

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