Howard Ellis v. Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees, Allen Fails v. Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees

685 F.2d 1065 111 L.R.R.M. (BNA) 2173 , 95 Lab.Cas. P 13,779 Howard ELLIS, et al., Plaintiffs/Appellants, v. BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYEES, et al., Defendants/Appellees. Allen FAILS, et al., Plaintiffs/Appellants, v. BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYEES, et al., Defendants/Appellees. Nos. 80-5562, 80-5603. United States Court of Appeals, Ninth Circuit. Argued Nov. 2, 1981. Decided Feb. 22, 1982. Decided Sept. 3, 1982. Michael E. Merrill, San Diego, Cal., for Ellis et al. Joseph Rauh, Laurence Gold, Washington, D. C., argued, for Broth. of Railway, et al.; Joseph L. Rauh, Jr., Rauh, Silard & Lichtman, Washington, D. C., William J. Donlon, Rockville, Md., on brief. Marsha S. Berzon, San Francisco, Cal., J. Albert Woll, Washington, D. C., for amicus curiae. Appeal from the United States District Court for the Southern District of California. Before PREGERSON and ALARCON, Circuit Judges, and WHELAN, * District Judge. PREGERSON, Circuit Judge: BACKGROUND 1 The Railway Labor Act, as amended in 1951, permits employers engaged in interstate rail or…