At the conclusion of a strike between TWA and the flight attendants' union, IFFA, TWA refused to displace permanent replacements or junior nonstriking attendants (crossover employees) with senior fullterm strikers, many of whom were therefore left without an opportunity to return to work. The IFFA filed the instant action contending that, assuming the strike was economic, the full-term strikers were entitled to displace the newly hired replacements and the less senior crossover attendants under the terms of the prestrike collective bargaining agreement.

The district court denied relief for the most part, but the court of appeals, relying on judicial interpretation of the National Labor Relations Act, reversed the lower court's ruling that the more senior full-term strikers could not displace junior crossovers. The question considered before the Supreme Court was whether an employer is required to lay off junior crossover employees in order to reinstate more senior full-term strikers at the conclusion of a strike.] O'CONNOR, J.... I.

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. 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. 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 345-346. As we then 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 346. On various occasions we have reaffirmed the holding of Mackay Radio.... ... 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...."

Accordingly, in virtually 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 poststrike 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, 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 samemanner that the hiring of permanent replacements does. 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 prestrike 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, "who rank lowest in seniority," 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 gamble; if the strike was successful the advantage gained by declining to strike disappears.... Reversed. JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, Dissenting ...

The issue in this case is whether under the ... 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.

Case Questions

1. The labor law governing labor disputes in the airline industry is the Railway Labor Act. May the Supreme Court look to cases decided under the NLRA when deciding a case under the RLA?

2. May an employer and union reach an agreement in conjunction with the end of a strike that would displace crossovers and permanent replacements?

3. Did the Court recognize in its decision that individual employees have a right to choose not to strike?

4. Did the Supreme Court see TWA's guarantees to crossovers that they would not be displaced by senior full-term strikers as an unlawful employer tactic destructive to the right to strike?