Petition for Writ of Certiorari — Railway Clerks v. United Air Lines, Inc.

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‘BrRoTHERFOOD or RAILWay ‘AND STEAMSHIP CLERKS,

FREIGHT HANDLERS, Exrenss AND STATION EMPLOYES,

a Petitioner

v. .

oh” Unrre Am Linss, INc., Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES. COURT OF. APPEALS

FOR THE SIXTa CIRCUIT

Ma

te |

Epwakrp J. HIcKry, JR.- _

JAMES L. HiGHsAw, JB.

620 Tower Building

Washington 5, D.C.

Counsei for Petitioner

Brotherhood of Railway and

Laas | Steamship Clerks, Freight

ae ae Handlers, Express and

De Station Employes

Of Counsel: | d is

* MuLHOoLLAND, Hickey & Lyman

741 National Bank Building -

_....Toledo 4, Ohio, and —

' 620 Tower Building

Wasbiagton 5, D. €

EOE ERAT TER PELE RRIBSTI SoM

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TABLE OF CONTENTS

, ae | . Page —

Opinions Below haneaene ahi ke Woipial icpuininnee Séeu oan

Jurisdiction vanced or rrr manchulcensxaasiaea 2

Questions DE dndécugisasaws ‘inevenseeeewecs 2

Statutes Involwed ............ Stixinecanes <paoan a

Statement ..... SEEN ere aed cnuanee liwee oe

Reasons for Granting ME civedsccscoriauseeeneahas 12

1. The Decision Below Deprives the Brotherhood of -

Any Forum. in Which to Litigate the Important

Federal Issue of Whether Its Agreement With

- Capital Survived the United-Capital Merger .... 12

2. The Decision of the Court of Appeals is in Conflict

_ + With the Decision of Another Circuit ........... 16

3. The Decision Below Conflicts With Decisions of

SEE ck cedwkkteun cane x Baa Sat a a 18

4. The Court of Appeals Erred in Holding That the -

Suit by the Brotherhood Involves a Representa-

tion Dispute <banh anomie Lanes oecen sete eee ee een, 19

Conclusion ..... eenccenesnecsnccesccesasecscccen s OM

CY ererererc rst | eeeryrer Terre. eee ken la

BIE TD ki iknsecskccnnscccnscessansdccnaceunsas . 2a

Appendix C sinccendenseccece SeakeCaeeougsagecceas GOR

Appendix D ........, ERARRcibAd Ke LaakceuENneeys 12a

INDEX TO CITATIONS

Cass :

Alaska Coastal Airlines- Ellis Air Lines Merger Case,

" ZARTD SIGRIIE, FEO, BEMIS ons cccsesctsscacesscnns

“Brotherhood of Railway Clerks v. Association for the

- Benefit of Non-Contract Employees, Case No.

Ne ol Teale etek Mie uh cae bake aka Gh 12

Brotherhood of Railway Clerks Vv. United Air Lines -

(Case No. 15,176, 6th PE A3eccubtakeneses 1

[ote }

. y

te 4

.

. -&

1

i iy Contents Continued

"7

&

City of Nashville, Denne v. United States, 155 F. .

-(State):

Supp. 98, 103, 105 (U.S.D.C. M.D. Tenn., Nashville

Div., 1957), aff'd per curiam 355 U.S. 63 Pie leant 22, 23

Colonial-Eastern Merger Case, 23 C.A.B. 500 (1956) .. 23

International Association of Machinists v. Central Air:

lines, 372 U.S. 682, 692 (1963), ................ .17,18

Livingston v. John Wiley: & Sons, 313 F.2d 52, "59°

(1963), cert. granted 373 U.S. 908 (Case No. 911)

16, 17, 18, 23

National Mediation Board, et al. v. Association for the

Benefit of Non-Contract Employees, Case No.

ckheadenhenaseashechsudesedtabeh>canens 12

Northwest Airlines v. Civil Aeronautics Board, 303

of fF Fe S| eee 5

United-Canital Merger. Case (Order No. E-)6605,

Docket No. 11699, April 3, 1961) ................ 5

United Air Lines, Inc. v. National Mediation Board,

Case No. 17, q77 ‘hcsuad puhndh Gu hguuhekeaséawee 12

Statutes: ‘™ : =o

( (Federal): ; a

Federal Aviation. Act of 1956, as amended (49 U.S.C.A., .

EE enki cccnbckcsdnaencseeceh< 5

Judicial Code (28. SC.A., Sections 1254(1), 1331,

1337, 2201 and 2202) -.......... 0s... ese ee Ps 3, 11

Labor-Management. Relations Act (29 US. 8. C. A, See-

WE ME 605400560004 s6n6¥e0nsweneebbineescus 16, 17

Railway mane. Act saad Uz S. ©.A., Section 151 et seq.) |

2,3, 4, 7, 9, 10,11,

12, 13, 14, 15, 17,

Delaware General Corporation Law, Sections 959 and

Se centucccnadedddunanse ses esebeenen 2, 5, 9, 10, 12, 13

MisceLLaNEovus:

_ ‘Administration of the Railway Labor Act by the Na-

tional © Mediation Board, 1434-1957"’, pages “24

GE TD. ecccnccancdivess pibendadeawad Kebauae = 21

r*.

18, 19, 0, 21, 29

a Fall)

"€7

5 P

IN THE

’ ali Court of the United States

OcrosER TERM, 1963

No.

Baorwmanoop OF RAILWAY AND STEAMSHIP CLERKS,

FREIGHT HanpLexs, Express AND STATION Employes,

Petitioner

.

—

3

Se eel “Uxim Am ‘lam INc,, Respondent

PETITION FOR A-WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

oe

Petitioner; the Brotherhood of Railway and Steam- —

ship Clerks, Freight Handlers, Express and Station

Employes (hereinafter called ‘‘the Brotherhood’’),

prays that a writ of certiorari issue to review the

judgment of the United States Court of Appeals

' for the Sixth Circuit, entered in the case .of Broth-

erhood of Railway and Steamship Clerks, Freight

Handlers, Express and Station Employes v. United Air

Lines (Case No..15,176) on December 17, 1963 (Ap-

pendix A hereto). .

- \ 2.

OPINIONS BELOW es

The opinion 6f the Court of Appeals, printed i in Ap-

pendix B hereto, infra, p. 2a, is not yet reported. The

opinion of the United States District Cont for the

Southern District of Ohio, Western Division at Cincin-

~ nati, printed in Appendix C hereto, infra, Pp. Ma, 3 is not 7

yet neperved.. |

| _ |°. JURISDICTION |

* The judgment of the Court of Appeals was entered

on December 17, 1963 (App.-A, ‘infra, p.-la). The Ju-

risdiction of this Court®is invoked under Title/ 28,

United Staten Code, Section 1254(1).

QUESTIONS PRRSENTED

In the. opinion of the petitioner, the following ques-

tions are presented by this petition: 7

1. Did the United States District Court vany juris-

. diction of the subject matter of a complaint by the -

Brotherhood against United Air Lines, Inc., alleging .

that United’s refusal to assume the. obligations of the

collective bargaining agreement of August 3, - 1959,

between Capital Airlines and the Brotherhood after

the merger of Capital into United constituted a Viola-

. °. tion of that.agreement, the Railway Labor Act, Dela;

ware law, and the merger contract, and asking for a

declaration of the rights of the. parties with, respect

thereto and for mGueeye, relief against’ such viola-

tions?

; 2. Did the N atienal Mediation: Board have exclusive |

- jurisdiction of the subject matter of the meeerneed s

complaint?

: f

3 eis

STATUTES INVOLVED

The statutory provisions hype are-(1) Sections

&@ 1331, 1337, 2201 and 2202 of Title 28 of the United

States Code (28 U.S.C.A.,/Sections 1331, 1337, 2201

and 2202) ; (2) Sections 2, First, 2, Seventh, 2, Ninth,

5, Second, 6 and 204 of the Railway Labor Act (45 -

-U.S.C.A., Sections 152, First, Seventh, Ninth, 155, Sec-.

ond, 156 and 184) ;’and (2) Section 328 of the Dela-

ware General Corporation Law. They are queiel in

; Appendix D, isifra, p. 12a et seq.

\K° ’ gP

“e \ STATEMENT

This litigation began with a complaint filed by the

Brotherhood against United Air Lines in the United

States District Court for the Southern District of Ohio,

Western Division at Cincinnati, asking that Court to

determine the legal rights of. the parties with respect

a

' / ¥ to a controversy between them concerning the appli-

* eation of a collective bargaining agreement, dated Au-

gust 3, 1959, between the Brotherhood and Capital

Airlines, to employees covered by such agreement who

became employees of United Air Lines upon the merger.

of the two air carriers en June 1, 1961, and requesting

the Court to. issue an injunction to enjoin United from

continuing ‘a refusal to apply the provisions of such

agreement to its employees. (R. 1-13.)"- United Air

Lines filed a motion asking, inter alia; the District

Court to dismiss the cofnplaint for lack of jurisdiction

_ over the subject matter thereof on the ground that it

- involved a representation dispute subject to the ex-

clusive jurisdiction of the National Mediation Board.

(R. 18-20.) The District Coart granted this motion

* Reference is to pages of the ‘certified record in the Court of

—

~

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eerie. we, me a O

° 8 a

4

. (App. C, autre, p. lla) and the Court of Appeals af-

- firmed (App. A, infra, p. la). 7

The collective bargaining agreement involved was —

executed pursuant to the Railway Labor Act (45 U.S. |

C.A., Sections 151 et seq.) by Capital Airlines and the:

Brotherhood as the certified representative of the craft

or class of clerical, office, stores, fleet and passenger

service employees of that air carrier effective August

1, 1948. The agreement was revised from time to time,

the last revision — effective August 3, 1959. (R. .

14.) -

Article Ly of of the agreement dealt with the contin-

’ gency of a future merger involving the air carrier and

read-as follows:

_ All provisions of this spnenieh shall be bind-

’ ing upon.the successors or assigns of the Company

je e. a, -, % and in case of a‘consolidation or

mpany (i.e. Os vital) will notify the

Brotherhood at least 90 y prior to .such

consolidation, or merger, and re tatives

of the Company (i.e. Capital) an . the Broth-

erhood will .meet and negotiate for the pro-

cedure to be followed and the — to be

afforded the employees involved.’

On August 11, 1960, United and Capital, both Dela-

ware corporations, entered into a merger agreement,

providing for the merger of Capital into United as the

surviving corporation. Section III, paragraph 1; of —

‘the mgrger agreement transferred to United all the -

Tights, privileges, powers and franchises of Capital sub-

ject to all the ‘restrictions, disabilities, and duties of

each of the constituent corporations, as well as all of

the property, real, personal and mixed of Capital. This

section of the merger agreement also dealt with the ob-

5

ligations of United for the sia ia and debts

of Capital. The duties thus imposed upon United by

the merger agréement for the debts, liabilities and

duties of Capital read as follows: (R. 5,6) .

‘United * * * shall be subject to all of,the restric-

tions, disabilities and duties of each of the Constit-

ent Corporations; * * * and all debts, liabilities

and duties of eich of the Constituent Corporations

shall thenceforth attach to United, and may be en-

forced against it to the same extent as if said debts,

‘liabilities and duties had been incugred or con-

tracted by it.’’ .

At all times pertinent, Section 328 of.the Delaware

General Corporation Law provided, as follows: (App.

D, Pp. 16a} :¢ ee

“The liability of corporations * * * existing under

the laws of this state * * * or the rights or remedies

of * * * persons doing or transacting business with

the corporation, s not in any way be lessened

or impaired by the * * * merger of two or more

corporations * * *.”’ ¥

United and Capital filed a joint application with the

Civil Acronauties Board for approval 6f the merger

agreement, under Section. 408 of the Federal Aviation

Act of 1958 (49 U.S.C.A., Section 1378).. The merger .

was approved by the Board en April 3, 1961. . United- -

Capital. Merger Case (Order No. E-16605, Docket No. |

11699). The Béard’s approval was affirmed upon ju- ©

dicial review. Northwest Airlines.v. Civil Aeronautics

Board, 303 F. 2d 395 (D.C. Cir., 1962). |

The merger was consummated on June 1, 1961. Ap-

proximately 2,700 former Capital employees covered by

p 2 Section 259 of the Delaware General Corporation Law imposed

the same duties on United. (App. D, p. 16a).

ee

- the collective tentninine agreement between Capital

and the Brotherhood became employees of United. (R.

11, 25.) Appreximately 2,200 of these employees‘were

clerical, office, fleet and passenger service employees

unrep ted on United: Approximately 500 were

ramp and stores employees represented on United by

the International Association of Machinists (1.A.M.).

The craft or class to which the 2,700 former Capital

be yees belonged ‘numbered approximately 10,000"

nited prior to the merger and was unrepresented.

(Rm) : .

Before, during, and after the proceedings before

the Board, the Brotherhood unsuccessfully sought by

. negotiation to persuade United to assume the obliga _

tions of the agreement as to the employees covered

thereby. Unitéd refused on the ground that the agree-*

* ment terminated automatically upon the consummation

of the merger. (R. 6, 7, 8, 9, 42, 51-53.) . Among the

employee, contract rights whith United thus refused

to recognize were those relating to seniority, pay, pro- |

. teétion against arbitrary discipline and discharge, pro-

cedures for the adjustment of grievances and against

arbitrary transfer, provisions for the health and safety .

of employees, and various other benefits such as sick

leave allowances, ovértime allowan group insur-

ance and pension benefits, and mneiidnenen of union

7 membership and check-off union dues. ~R 8 9.)

_At no time has the Brotherhood sought to obtain

representation rights for the craft or class on United

* by enforcement of the agréement, but only to protect

: contract rights of employees. (R. 58.) ,

“The Brotherhood also: exhausted all. available ad-

ministrative remedies.

It intervened in the CAB. proceedings and asked

the Board to condition any approval of the merger

;

_¢

upon the assumption by United of the obligations of

the agreement. (R. 7, 22.) United opposed on the

_ ground that the agreement lawfully termiriated upon,

consummation of the merger. The Board declined ‘‘to

pass on the issue. of whether United would be justified, >

as a matter ‘of contract or labor law, in ignoring the

agreement.” It left the matter ‘‘as a problem to be _

worked out between the Companies and employees in.

accordance with regular procedures applicable to the

matter of representation and agreement.” (R. 23.)*

Since the revision of the agreement of August 3,

1959, containing Article-1(b), providing that the agree-

ment should be binding on successors and assigns of .

-Capital, was executed during mediation, the Busther-

hood also applied to the National Mediation Board for

an interpretation of the meaning or application of such

Article pursuant to the provisions of Section 5, Second,

-of the Railway Labor Act (45 U.S.C.A., Section 155).

(R.8.) After hearing, at which United appeared and

opposed the Brotherhood application (R. 8Y, the Medi-

ation Board, on August 25, 1961, granted the applica-

tion and issued an opinion interpreting “Article 1(b) of

the agreement. (R. 15-18.) This opinion found that

the provisions of Article 1(b) of the collective bargain-

ing agreement of August 3, 1959, between Capital and

the Brotherhood were unambiguous and clearly meant

precisely what they say. The Mediation Board's con-

~ elusion on the point read as follows: (R. 8, 17)

‘After reviewing the record of mediation in NMB .

Case No. A-6037, as well as the transcript of hear- :

"8 The Brotherhood sought review of the Board decision in the |

United States Court of Appeals for the District of Columbia Cir-

‘euit (Case No. 16,360—R. 23), but withdrew the petition when the

. Board made clear it had simply declined to act on the Brotherhood

request. (R, -_ ‘ |

;

!

|

i

|

2 atrog SONNEI

8

ings and briefs submitted by the Brotherhood and.

United Air Lines, Inc., this Board is of the opin-

_ ion that the language of Article 1(b) of the agree-

. ment of August 3, 1959, rindi, ‘all provisions

of this agreement shall be binding: upon the suc-

-cessors and assigns of the company’ is clear and

unambiguous. In other words, language means

just what it says and we so find.’’

__ At the same time the Mediation Board found tiiat it.

did not:have jurisdiction to spell out. the rights ands

obligations of the parties after the merger of Capital .

and United. The re eae of the Mediation Board

upon this point read_as follows: (R. 17)

‘“‘It must be pointed out, however, that the medi-

ation agreement was executed on August 3, 1959,

while the merger agreement between Capital and

United wag-executed on August 11, 1960. Section’

d, Second, of the Railway Labor Act, in our view,

delegates no authority to this Boa interpret or ©

construe the merger agreement, which } a docu-

ment foreign to its processes. The legaY author-

ities cited by the Brotherhood may sustaimiis posi-

tion, but this Board lacks jurisdiction to‘do any- |

thing more by interpretation than to construe the “

mstrument produced through its mediatory func- —

tion. ‘ It is true that the language relied upon looks

to the future, but can it be said that the quoted

provision clothes this Board with authority to

‘; pass upon-issues which arise put of subsequent

developments such as-mergers or consolidations? .

_ We think not. In sum, we find thet the language

is clear and unambiguous, butail to-find authority

to spell out the rights and obligations of the par-

ties in the situation presented here.’’e: (Emphasis

supplied. ) i — :

F nllowing the issuatce of the Mediation Board s

‘opinion, the Brotherhood made another effort to settle

&

~ the matter by negotiation with United upon the’ basis

of. the Mediation Board’s decision. United refused

to even meet with the Brothérhood to discuss the effect

of the decision. (R. 9.) °

Finally, the Brotherhood sought to obtain a determi-

nation‘of the rights of the employees involved through

the processing of grievances pursuant to the provisions

of Article 43, of the agreement which provides for a

Board of Adjustment pursuand\to the requirements of

Section 204 of the Railway Labor Act (45 U.S.C.A.,

Section 184) to render final and binding detertiinations

on the application and interpretation of the agreement.. °

However, United refused to accept and process these .

grievances, thus frustrating the Board. of Adjustment

arbitration process. (R. 11, 12.)

The Br otherhood, thereffe, on ‘Norenber 9, 1961,

filed its complaint in the District Court for declaratory

and injunctive relief. (R. 2-13.)

-—t

.

‘The eomplaint raised clear-cut questions of law for

adjudication. The Brotherhood alleged the existence -—

of the collective bargaining agreement of August 3 a

" 1959, between Capital and the Brotherhood containing

the provision that such agreement ‘‘shall be binding

~ upon the successors or assigns of the Company”; the’

provisions of the merger agreement between Capital

and United requiring United to take over the liabilities

.and duties of Capital to the same extent as if such lia-

bilities and duties had, been incurred or contracted by

United ; the requirements of Delaware law to the'same

effect ; the merger of Capital and: United pursuant to

such merger agreement and law; and the refusal of |

United to assume the liabilities and duties of said cal-

lective bargaining agreement between the Brotherhood

- 2.

10

and Capiial despite prolonged efforts of the Brother- _

hood to obtain this result. (R. 1-9.)

The: complaint alleged that United’s refusal to as-

sume the obligations of said bargaining agreement of

August 3, 1959, was unlawful because such refusal (1)

violated the provisions of Article 1(b) of said collective

- bargaining agreement of August 3, 1959, between Cap-“

ital and the Brotherhood; (2). violated the provisions

of. Section ITI, paragraph 1 of the merger agreement .

of August 11, 1960, between Capital and United; (3)

violated the Delaware General Corporation Law, which

requires United to assunte the liabilities and duties of —

Capital; (4) violated the requirements of Section 2,

First, of the Railway Labor Act (45 U.S.C.A., Section

152, First), which makes it the duty uf »". carriers to

exert every reasonable effort to make and maintain.

agreements with their employees to settlé all disputes

arising ~ut of the-application of such agreements or

otherwis:; (5) violated the provisions of Section 2,

Seventh, of the Railway Labor Act (45 U.S.C.A., Sec-

tion 152, Seventh), which prohibits any carrier from

changing rates of pay or working conditions of those:

emp.vyees as a class as.embodied in collective bargain-

ing agreements except in the manner prescribed in such

agreements ; and (6) ‘violated the provisions of Section

6 of the Railway Labor Act (45 U.S.C.A., Section 156),

' because-it involved the changing of rates of pay, rules |

. or working conditions of United’s employees embodied

in the agreement of August 3, 1959, without.@omplying

with the procedures set forth in such section. (R. 9-12.)

It was also. alleged that United’s refusal to accept

_and process grievances of former Capital employees

submitted to it in accordance with the provisions

- of said Brotherhood-Capital bargaining agreement

of August 3, 1959, violated the requirements of Section

\

S/S

o

PO

a ee

11

204 of the Railway Labor Act (45 U.S.C.A., Section

184), which requires that all disputes of employees

growing out of grievances or out of interpretation of

collective bargaining agreements are to be settled by a

Board of, Adjustment. (R. 11.) ©

In the proceedings in the District Court the Brother- =

hood and United agreed on all of the material facts

ulleged in the.complaint.. This is evidenced by the

cross-motions fe~ summary: judgment filed by the par-

ties. (R. 18, 48.)*

There was thus preserited for eitetinidicn of the

District Court a clear-cut ‘legal controversy falling

within the jurisdiction of that Court under Sections

1331, 1337,:2201, and 2202 of Title 28 of the United

States Code. (28 U.S.C.A., Sections 1331, 1337, 2201,

and 2202). However, the District Court’ did not adju-

dicate this controversy, but granted United’s alterna-

. tive motion to dismiss the complaint on the ground that

the Court was without jurisdiction of the subject

matter of the complaint because it related to a dispute

as to who are the representatives, under the Railway

Labor Act, of employees of United, and that exclusive

jurisdiction to determine such.a dispute rests with the

National Mediation Board under Section 2, N inth, of

the Railway. Labor Act. (R. 75.) . :

‘On appeal, the Court of Appeals affirmed the action

of the District Court in dismissing the complaint. —

(R. 1a.) '

The Brotherhood has sought full sieaiation

rights for the cotire craft or class of some 12,000 em-—

4United did introduce by way of affidavit (R. 20-41, 68) many

conclusionary statements, which the Court of. Appeals found were

_ irrelevant to the issues raised by the os. (Appendix B,

infra, page 6a, footnote 2.) |

12 7

ployees of United Air Lines, of which the oats

covered by the collective bargaining. agreement here

involved are a part, pursuant to an application filed

with the National Mediation Board on August 24, 1962,

for certification under the Railway Labor Act as repre-

sentative of such craft or class. (Mediation Board Doc-

ket No. R-3590.) The Mediation Board has been unable

to hold an election to-determine the representative for

the entire craft or class as a result of suits to enjoin

such election brought by United Air: Lines and by a

group-of employees of United Air Lines‘in the ‘Dnited

States District Court for the District of Columbia

which are now before the United States Court of Ap-

peals for the District of Columbia Circuit for determi-

nation. United Air Lines, Inc. v. National M ediation

Board, Gase No: 17, 777; National Mediation Board, et

~ al. v. Association for the Benefit of Non-Contract Em-

ployees, Case No. 18,068; and Brotherhood of Railway

and Steamship Clerks v. Association for the Benefit of

N on-Contract Employees, Case No. 18,072.

REASONS FOR GRANTING WRIT

1. The Decision Below Deprives the Brotherhood of Any Forum

in Which to Litigate the Important Federal Issue of

Whether Its Agreement With Capital Survived the United-

Capital Merger

The decisfon of the Court of dient hetoe’ the

Brotherhood and former Capital employees covered

by the agréement of August 3, 1959, of any forum in

which to adjudicate Brotherhood contention that

United was @@ legally required under the Railway

- Labor Act, the provisions of the agreement; and the

provisions of Delaware law and of the merger contract .

executed pursuant thereto to assume the: obligations

of such agreement as the surviving carrier of United’s

merger with Capital. The Civil Aeronautics Board

+ a ,

2a Ne I CARRE

138 . 9 :

declined to decide. this issue and the National Media-

tion Board, although agreeing with the - Brother-

-hood’s interpretation of the agreement, held that it _

did not have jurisdiction to determine the question.

United ttself frustrated the arbitration of the dispute

under the Board of Adjustment provisions of the

agreement by refusing to accept and process grievances

thereunder. ._ ee ee aie ;

‘The National Mediation Board, which both the Dis-———~

trict Court and the Court of Appeals held had exclusive « “a

jurisdiction of the dispute between the Brotherhood

and United under Section 2} Ninth of the Railway

Labor Act, clearly cannot determine the legal ‘issue

presented by the complaint under that Section.

The complaint (R. 12, 13). requested that the District

Court (1) declare the legal rights of the parties with

respect to the agreement of August 3, 1959, upon con-

summation of the merger of United and Capital; (2)

deelare that United is a’ successor or assign of Cap-

‘ital within the meaning of the provisions of Article

_1(b) of such agreement; (3) declare that United as-

sumed the liabilities and duties of the agreement by

‘reason of the provisions of Section..III, paragraph

1 of the merger contract between Capital and United;

(4) declare that by operation of the laws of Delaware

United is bound by thé provisions.of the agreement;

and (5) issue an injunction enjoining United from con-

tinuing its refusal‘to apply the provisions of the agree-

ment. ~ «

Under Section 2° Ninth, of the Railway Labor Act

(45 U.S.C.A., Section 152, Ninth) the Mediation Board

has authority to grant only the following relief:

" t6# %* to certify to both parties [i.e. the disputing

unions], in writing * * * the name or names of the

14

individuals. or organizations that have been des-

ignated and:authorized to represent the employees -

involved in the dispute, and certify the same to the °

carrier. Upon receipt of such certification the car-

rier shall treat with the representative so certified

as the representative of the craft or class for the

pufpeses of this chapter.””

‘Action by the Mediation Board under on 7

‘ Ninth, would give none of the relief requested in the -

complaint. At most it woald require United to bargain -

with the Brotherhood for an entirely new contract to

cover the employees of United here involved, as well

as other employees of United not involved, and, after ~

months and perhaps years of such bargaining, including

possibly even Presidential Emergency Board proceed- ~

ings and a strike, would enable the Brotherhood to

secure such a couitract. On the other hand, the Broth-

erhood’s position in this lawsuit is that regardless. of

- what the ultimate representation might be for. the

employees covered by the Brotherhood-Capital bargain-

ing agreement of August 3, 1959, United was required

on June 1, 1961, when the merger was consummated

to assume the obligations of that agreement and apply

_it to the former Capital employees governed by that

agreement who then became employees of United until

the agreement was changed in accordance with the

provisions ef the Railway Labor Act. | af

The rights of the former capital employees who are

now United employeés to the benefits of said agree-

- ment of August 3, 1959, on and after June 1, 1961, and

their right to different benefits under a different con-

tract negotiated sometime in the indefinite future fol- —

lowing a Mediation Board proceeding under Section 2,

Ninth (igeluding a representation election) are clearly

Se ee em

not the same thing and nes for an entirely different _

type of relief.

The fact that the Brotherhood seeks representation

rights for the entire. craft or class of United em-

ployees of which the former Capital employees here in-

volved are a part before the National Mediation Board

- (see page 12 above) and the question of whether the °

_ Brotherhood does or does not secure such a certification

has no relevancy to the determination of rights under

the Brotherhood-Capital bargaining agreement of Au-

~ gust 3, 1959. The failure of the Brotherhood to obtain

such certification will not determine rights under that

agreement. on. and after June 1, 1961, following the ©

merger of Capital and United. | ‘Nor will issuance of,

such a certification by the Mediation Board determine

any issue raised by the complaint or even automatically

put such agreement into effect on United for.any em-

ployee. All that the outcome of the certification pro-.

ceeding will determine is whether or not United must.

in the future treat with the Brotherhood on behalf of

the employées to which the certification extends. No

obligation of United under: said Brotherhood-Capital

bargaining agreement of August 3, 1959, will be

affected in any way.

It is submitted that the issue of whether or ‘not a col-

’ lective bargaining agreement between:a. union and an

air carriey executed pursuant to thé provisions of the

Railway Labor Act survives a merger of that air car-

rier with another air carrier presents an important,

Federal question which deserves to he litigated upon

‘the merits. It is also submitted: that it is unfair to

- the Brotherhood and the employees involved to deprive

them of any forum in which to obtain an adjudication

of this issue. hes

t

ie OR AA. Vee wey ~

16

"2, The Decision of the Court of Appeals Is in Conflict With the

of Another Circuit

Vo a Sr ene Oe

The decision below is-in direct conflict with the deci- .

sion of the Second Circuit in Livingston v. John Wiley

d: Sons, 313 F. 2d 52 (1963), cert. granted 373 U.S. 908

' (Case No. 911). | \

’ The dispute between. Wiley &. Sons and the union

concerned a collective bargaining agreement entered .

into between the union and Interscience Publishers,

Ine., in 1945 and revised from time to time. On October

2, 1961, Interscience effected a consolidation with Wiley

& Sons. The 80 employees of Interscience became

employees of the Wiley Company which also had 300

- other employees. Interscience before the consolidation

of the Wiley company thereafter took the position that ©

‘the agreement was automatically terminated for all

purposes by the consolidation and that all rights of the:

union ‘and the employees arising out of the agreement

were._at an end. The Wiley Company refused to rec-

ognize the seniority of the former Interscience em-

ployees or any other rights under the contract. Nor

ty

did it recognize the appellant union or any other union. -

. Both before and after the consolidation took place

the union involved took the position that the agreement

was not terminated by the consolidation and certain

rights of the employees had become vested. When the

Wiley Company refused to agree with this position, the

union. breyght suit in a United States District Court

| _ under Section 301 of the Labor-Managemnet Relations -

' Act (29 U.8.C.A., Section 185) to compel’ the Wiley -

Company to arbitrate the dispute between the parties

under the grievance and arbitration provisions of the

agreement. The decision of the Second Circuit held

that the collective bargaining agreement and the rights .

arising therefrom were not necessarily terminated by

17

‘the consolidation and that the Wiley Company must

arbitrate the dispute as to the survival of the contract

pursuant to the provisions thereof.

‘The Cotrt of Appeals in the present case held that

the decision in the Wileyd Sons case was distinguish- ©

-able since “‘we -hold that the instant case involves a

representation dispute and not merely an action sound-

ing in contract.”” (Appendix B, page 9a.) It is . °

submitted that this attempted distinction involyes cir-

’. eular reasoning and is completely erroneous. The only

differences between the Wiley & Sons situation and the .

present ease are (1) the collective bargaining agree-

ment in the Wiley & Sons case, unlike the one here in- -

volved, did not provide that it was binding upon, suc-

-eessors and assigns of the contracting company, and

(2) the suit was under | Section 301 of the Labor-

Management Relatians Act. The presence in the con-

tract here involved of a provision making the agree- .

ment binding on successors and assigns of Capital

makes even a stronger case than in the Wiley & Sons

situation for the fact that the agreement survived the

merger. The absence. from the Railway Labor Act of ,

a provision such as Section 301 of the Labor-Manage-

ment Relations Act is of no significance in light of the

decision of this Court in International Association of

Machinists. v. Central Airlines, 372 U.S. 682 (1963). |

This is particularly true in light of the fact that one

- of the provisions of the collective bargaining agree-

ment here involved, which the Brotherhood -seeks to

enforce, is a Section 204 Railway Labor Act contract

_ which this Court held in the Machinists case (page

692) ‘‘like the Labor-Management Relations Act Sec-

tion 301 contract, is a Federal contract and is there-

fore governed and enforceable by Federal law in the

serene courts. “s

od

aa ,

If the Federal courts had jurisdiction to entertain.

the suit in.the Wiley & Sons case, the District Court

clearly had jurisdiction to entertain the suit by the

Brotherhood against United. United suggested to the

Court of Appeals that tLe present case differed from

the Wiley d& Sons case because of the finding on page

58 of the Second Circuit decision that no rival union

was there involved whose rights would be interfered

with by a pressing of the employees’ claims while here

there was a rival union, i.e., the I.A.M. because the

latter represents approximately 500 of the 2,700 Cap-°'

ital employees taken over by United. Obviously, at

best, this argument would be applicable only to those

employees and not to the other 2200 former Capital

= employees involved. In addition, the Brotherhood did

not assert any right to override any agreement made

by the LAM with United covering the 500 employees.in -

question. The LAM clearly recognized this fact when

it. advised that there was ‘“‘no dispute between the

Brotherhood of Railway Clerks and the IAM with

-réspect to the representation of employees and, accord-

ingly, the IAM has no interest aud no desire to be a

‘party to the litigation.”” (R. 6%.) ~

- 8, The Decision Below Conflicts With Decisions of This Court

The Brotherhood submits that the decision below Se

direct conflict with the decision of this Court in Jn@¥-

national Association of Machinists v. Central Airlines,

372 U.S. 682, referred to above. In that case the LAM

brought suit to enforce a grievayce decision made under

the provisions of a collective bargaining agreement.

executed pursuant to the requirements of Section 204

of the Railway Labor Act (45 U.S.C.A., Section 184).

The decision by this Court reversed the judgment of

‘\

*

. o Dag . J » y ° ir. rr

19

the Court of Appeals for the Fifth Cireuit (295 F. 2d °

209) holding that the District Court had no jerisdiction

to entertain the complaint because there was no Federal

* eause of action. This Court held that it is Federal law —

which determines whether the contract was valid and

enforceable according to its terms. The instant suit

is to enforce an agreement between the parties executed

pursuant to the provisions of the Railway Labor Act, |

including Article 43 thereof, which provides for a crea-

tion of a Board of Adjustment required by the provi-

sions of Section 204 of the statute. (Exhibit A to the .

Complaint, page 48, affixed to R. 14.)

4. The Court of Appeals Erred in Holding That the Suit by the .

- Brotherhood Involves a Representation Dispute

Both the District Court.and the Court of Appeals

held that the National Mediation Board has exclusive

jurisdiction under Section 2, Ninth, of the Railway

Labor Act. of the subject matter of the Brotherhood

complaint because it involves a representation dispute.

(R: 75; Appendix B, page 9a.) This holding is not

only erroneous but invelves a misinterpretation of the

Railway Labor Aci.* Section 2, Ninth, is applicable

only to a dispute ‘‘among a carrier’s employees as to

who are the representatives of such employees desig-

nated and authorized in accordance with the require-

ments of this chapter.’’ _Neither the decision of the

District Court nor the decision of the Court of Appeals

5 The decision of the Court of Appeals is also factually in error

when it states (Appendix B, p. 3a) that it is not contended that,

by reason of the provisions of Section III, paragraph 1 of: the

. merger agreement between Capital and United, United intended to

assume the obligations of Capital under any of its collective bar-

gaining agreeraents. Paragraphs 10 and 20of the complaint (R. 5,

6, 9, 10) specifically: allege. such an assumption under the merger

contract of tae oe < of the collective ‘bargaining —

20

explains who are the parties to the representation dis-

. pute which they find to be present. Indeed, the Dis-

trict Court seems to have invented a new. type of

dispute other than these involved in the threé cases

upon which both it.and the Court of, Appeals rely.

(R. 74.) Certrinly there is no such dispute among

the 2200 employees of United who are: unrepresented

on the property of that cayrier’ and whose rights

under the collective bargaining agreement with Capital

the complaint seeks to enforce, nor is there any repre-

sentation dispute between the IAM and the Brother-

- hood with respect.to the approximately 500 former

Capital employees covered by the Brotherhood agree-

‘ ment with that carrier who are represented on United

by the IAM. The Brotherhood did not seek to have

the District Court adjudicate that it is the duly desig-

nated representative under the Railway Labor Aci of

these. 500 employees. The Brotherhood sought only

by its complaint to establish that United was under.

e duty to assume the obligations of the Brotherhood-

Cupital agreeme::t on and after June 1, 1961, as to

all former employees of Capital covered by that agree-

ment and that rights of such employees of United

- began to accrue on-that date. It is clear that United

‘and the LAM had a right after June 1, 1961, to nego-

tiate a change in the agreement of August 3, 1959, -

between’ Capital and the Brotherhood governing the

500 ramp and stores employee’ in accordance with the -

requivennQis of the — Labor. Act. — rie

‘The decision of the District Court which was affirmed ‘

‘by the Court of Appeals equates the contract-rights of

the employees involved with representation rights

under the Railway Labor Act: This is clearly in error.

21

Representation rights under tliat statute flow out of

" ° Sections 2, Third, and Fourth and arise out of desig-

ations made by the employees certified by the Media-

tion-Board. Contract rights, on the other hand, are

based on Sections 2, First, and Seventh, and Section

6 of the statute, and the law governing contracts. Once

contract rights are established under a cdllective bar-

gaining nent executed pursuant-to the Railway

Laber Act they may be extinguished only in aecopi- —

ance with the terms of the contract and Section 6 of

- the statute. Even a change in representation has no_

__ effect upon contract rights.. The National Mediation

Board has pointed out this fact in its official publica-

tion ‘‘Admiriistration of the Railway Labor Act by

the National Mediation Board, 1934-1957"’. At pages

24 and 25, the Mediation Board states in , pertinent

part as follows: \ i>

“Change of representatives under cristing agree-

ments.—W hen there is an agreement in effect be-

tween a carrier and its employees signed by one

set of representatives and the employees choose

new representatives who are ‘certified by the

Board, the Board has taken the positioMthat a

-hange in representation does not alter or -cancel

ny — agreement made in behalf of the em-

ployees~by their previous representatives. The

only effect of a certification by the Board is that

the employees have chosen other agents to repre-

sent them in dealing with the management under

the existing agreement. If a changé inthe agree-

ment is desired, the new representatives are re-

quird to give due notice of such desired change as

— by the agreement or by the Railway

bor Act. Conferences must then be héld to

agree on the changes, exactly as if the original -

representatives had been continued. The purpose

- of such a policy is to emphasize a pege'rte of the

22

Railway Labor Act that agreements are between

_ the’employees and tlie carrier, and that the change

_—*” of an employee representative does not automatic-

! ‘ally change the contents of an agreement. = 7 Em-

phasis supplied. ) ;

Thus, rights arising out® "of ‘a collective bargaining

agreement under the Railway Labor Act survive a

change in the representative, who negotiates the agree-

ment.

The inherent distinction between sontwest rights and

representation is also demonstrated by numerous ex-

amples of th©assumpiton of the obligations of collec-

tive bargaining agreements in railroad and air carrier

mergers without regard to questions of representation.

City of Nashville; Tennessce v. United States, 155 F.

— Supp. 98, 105 (U. ‘S.D.C: M.D. Tenn., Nashville Div;

_ 1957), aff’d per curiam 355 U.S. 63. At page 105 of the

' opinion of the District Court in that case, approving

_ the merger of the Louisyille & Nashville Railroad and

the Nashville, Chattanooga & St. Louis’ Railway, the

Court spoke as follows: - A

‘* The approval by this: court of: the order of the

Interstate Commerce Commission of Mareh 1, 1957,

approving the merger upon the conditions therein

-stated,-is based upon the express condition that the

rights of the employees of the Nashville, Chatta- ,

‘nooga & St. Louis Kailway Company shall be pro-

tected equally with those of employees of the Louis- _

‘. ville and Nashville Railroad Company as relates to

seniority and to: other cofiditions ef employment

in accordance with the express understanding as

stated at the hearing by the attorney for the Inter-

state Commerce Commission and by attorneys for

_ the two railroad carriers involved herein, disclosed

in finding of fact-Number 15.”’

owe *

23

The assurances referred to as-set forth in- Finding’

No. 15 read in pertinent _— ‘as foliows (155 F. Supp.-

at 103) :

‘*The attorney for the Louisville and Nashville

Railroad: Company and the Nashville, Chatta- .

nooga & St. Louis Railway Company stated that,

in the merger agreement between the railrqads, it

is expressly provided that the Louisville and Nash-

ville will assume any and all obligations and con-.

tracts of the Nashville, Chattanooga & St. Louis

- “Railway Company, including its negotiated union

_ bargaining agreements.’’ (Emphasis thcirs. )

Examples of a similar assumption of contract obli-

gations in airline mergers appear in the record with

respect to the Colonial-Eastern Merger and the Alaska -

Coastal Atrlines-Ellis Air Lines Merger (R. 59-66).

_ The decision of ‘the Court of Appeais also adverted

to practical difficulties in applying the agreement to

. less.than an entire craft or'class of United employees. .

Article 1(b) of the agreement, quoted_above, page 4,

provides a means of meeting any such problem in the

‘ agreement of- the parties to meet and negotiate for

‘“‘the procedure to be followed and the protection to be

afforded the employees involved.’’? In addition, any

‘such diffie ulties did not prevent the Second Circuit

in the Wiley & Sons case from holding that the agree-.

ment there invol did not automatiéally terminate ©

upon a consolidatfon. Moreover, that Court believed ~

that any such problem couid be taken care of by the

arbitrator. 313 F. 2d ai 59, footnéte 5. Likewise, in

the present case if the parties were unable to meet any

such problem through negotiations under Article 1(b)

the problems could be determined by arbitration be-

fore an Adjustment Board under Article 43:

CONCLUSION

For the foregoing reasons, this petition for a writ of —

certiorari should be granted.

Respectfully submitted, —

Epwarp J. HIcKry, JR.

JAMES L. HIGHSAW, JR.

620 ‘Tower Building

Washington 5, D. C.

Counsel for Petitioner

Brotherhood of Railway and

Steamship Clerks, Freight

Handlers, Expressand -

Station Employes

| Fgbruary, 1964

Judgment

(Filed December 17, 1963)

Appeal from the United States District Court for the

Southern District of Ohio. -

This cause came on to be heard on the transcript of

record from the United States. District Court for the

Southern District of Ohio, and was argued by counsel.

On consideration whereof, It is now here ordered and.

adjudged by this Court that the judgment of the said

District Court in this cause be and the same is hereby

Approved for entry:

| s/ Harry PHILuirs,

‘ . United States Circuit Judge.

-

“he”

APPENDIX B

No. 15176 -

UNITED STATES COURT OF APPEALS:

FOR THE SIXTH CIRCUIT

BroTHERHOOD oF Rartway AND STEAMSHIP CLERKS, FREIGHT

Hanpuers, Express aNp Station EMPLOYEs,

Plaintiff-A ppeliant, |

Vv.

Unrrep Arr Aaa, a, Defendant-Appellee.

_ from the United States District Court for. the

Southern District of Ohio, W estern Division.

| Decided December 17, 1963.

Before Mutter, O’Svtuivan and Pxzyps, Circuit Judges.

Puuiurres, Circuit Judge. This case arises out of the

merger of Capital. Airlines, Inc. into’ United Airlines,

appellee herein, on June 1, 1961. The facts concerning the

background and details ‘of this merger are set forth in

Northwest Airlines, Inc. v. C.A.B.,°303 F.2d 395 (C.A.

D.C.), affrming the _approv al of an merger by the Civil

Aeronautics Boaic.

In May 1947 appellant was certified ey the Nationa!

Mediation Board pursuant to the Railway. Labor Act,’ 45

The Railway. Labor Act, first adopted ‘in 1926, was ext: nded to

air carriers in 1936 by the additions of Title iI, 45 U.s.C. § 181

et. seq, which applies all the provisions of the Act (with certain

exceptions not involved here) to ‘‘every common carrier *y air .

and ... person who performs any work as an employee .. . of such

‘carrier. ” 45 U. S.C. § 181.

~

3a

U.S.C. § 151 et seq, as the designated bargaining agent for |

the employees of Capital in the craft ar class of clerical,

‘office, stores, fleet and passenger service. Pursuant to this ”

certification, appellant and Capital entered into:a collective

bargaining agreement effective August 1, 1948, which, with

certain revisions, was in effect immediately prior to the

time Capital was merged into appellee.

Article 1(b) of this collective aargnining agreement

contained the following provision:

‘‘All provisions of this agreement shall be binding

upon the successors or assigns of the Company (i.e.

- Capital) and in case of a consolidation or merger,

the Company (i.e. Capital) will notify the Brother-

~ hood at least 90 days prior to such consolidation, or

merger, and ‘representatives of the .Company (ie.

Capital) and the Brotherhood will meet and negotiate .

- for the procedure to be followed = the protection to

be afforded the employees inv olved.”’.

The merger agreement ‘between iui and ‘Capital

provided as follows:

‘*United . . . shall be subject to all of the Astrictions,

disabilities and duties of each of the Constituent Cor-

porations; . ... and all debts, liabilities and duties of

each of the Constituent Corporations shall thenceforth

attach to United, and may be enforced against it to the

same extent as if said debts, liabilities and duties had

been incurred or contracted by it.’ . é

Appellee-announced from the ‘outset of the mérger pro- |

ceedings that it would not assume or be bound by any of

; — ’s labor ments. It is not contended that by the

above-qu ge of. the merger agreement appellee

intended to assume the obligations of Capital under any

of its collective bargaining agreements, or that appellee

‘at any time made any representations, to the effect that it

as successor would be bound by the agreement between

appellant and Capital.

4a

Appellan? participated as an intervenor in the proceed-

ings before the Civil Aeronautics Board, urging that,

if that Board should approve the proposed merger, this

collective bargaining agreement be imposed upon ‘appellee

as a condition thereof. The Board refused to impose this

condition in its order approving the merger, stating that

this was a matter to be worked ou: ‘‘in accordance with _

regular procedures applicable to the matter of representa-

tion and agreement.’’ Appellant appealed from the Board’s _

‘decision to the Court of A~ peals for the District of Colum<

bia, but thereafter withurew its appeal = the React :

escence of the other parties.

—_—_—-

This suit was filed by appellant seeking a declaration

‘that appellee was bound by the terms of appellant’s col-

.lective bargaining agreement with Capital and to enjoin

appellee from refusing to apply that agreement to those—*

former employees of Capital ae seas ghee

employees of appellee upon cans i of the merger

Appellee moved to dismiss s the-complait t or for summary

judgment u owing grounds >The cause involved

€ as to who were the representatives under the“

Railway Labor Act of certain of its employees and hence

exclusive jurisdiction lay with the National Mediation

Board; if the requested relief were granted appellee would

be required to treat with a bargaining representative for

a minority of a craft or class, contrary to the provisions of

the Railway Labor Act; that the agreement between

- appellant and Capital revealed on its face that it b could not —

be legally or practically \applied to less than “an. entire

craft or class; that another labor organization had repre-

sentation rights for part of the. group upon which appellant

was seeking to impose ‘its agreement with Capital and

hence this other labor caaaiae was an ns

party to the action. ~

“Appellant filed a ‘cross-motion for summary judgment

upon the ground that the material- facts — in the

complaint were not in dispute and that appellant on such

- undisputed facts i is entitled to judgment as a matter of law.

The District Court denied both motions for summary

judgment for lack of jurisdiction and granted appellee’s

motion to dismiss the complaint, holding that the case .

relates to a dispute as to who are representatives ynder the

Bailway Labor Act of certain employees of appellee and

that exclusive jurisdiction to determine such a dispute vests,

with the National Mediation Board under the provisions

of Section 2, Ninth, of the Railway Labor Act, 45 U.S.C.

§ 152, Ninth. .

affirm the District Court.

_— = decisions of the Supreme Court make it clear that

_ the federal courts have no jurisdiction over the solution

of representation disputes. Switchmen’s Union of North

America v. National Mediation: Board, 320 U.S. 297-5

General Committee v. Missouri-K ansas-T exas Rauroad Co.,

320 U.S. 323; General Committee v. Southern Pacific Co.,

320 U.S. 338.

The facts of this case demonstrate the soundness of these

three decisions and the impracticality: of judicial interfer-

ence in representation disputes over which Congress has

conferred jurisdiction upon the National Mediatian Board.

45 U.S.C. $152. Prior to the merger: of Capital into appel-

lee, Capital was substantially the smaller of the two air- -

lines. Immediately prior to the merger it had about 6500

hon-managemént employees, about 6000 of whom were

represented by labor organizations under six agreements.

Appellee had 21,000 non-management employees, about

13,500 of wham were represented by nine labor organiza-

,_ tions under-twelve agreements. At the time of- the merger

there were approximately 2700 employees of Capjtal in the

clerical craft or class represented by appellant and covered’

by the collective bargairiing agreement here sought to be

enforced against appe _ The number of employees of

}

m. ; ea

»

“-

7

6a .

appellee in this general craft or class numbered approxi- |

mately | 10,000, a part of whom had been organized pursu- .

ant to ‘a National Mediation Board election and divided

into two separate classifications. Immediately prior to the

nierger, approximately 2200 of the 10,000 employees of

appellee in these classifications were represented by the

Intemational Association of Machinists under what. is

designated-jn the record as the I.A.M. Ramp and Stores‘

_ Agreement.) The remaining 7800 employees of appellee in

this general. class were not represented by a labor organiza-

i ut were under uniform personnel’ regulations cover-

ing wage rates and fringe benefits.

After the merger. the former Capital employees per-

forming work covered .under the I1.A.M. Ramp and Stores —

Agreement came under that agreement, and about 530 of the

2700 Capital employees formerly represented by appellant

are now represented: by the International Association of

Machinists. The remaining 2170 former Capital employees

are now working alongside the 7800 unorganized employees

of appellee in the same job classifications, and all are

subject to the same pay schedules, benefits and working —

_ conditions: established by appellee’s personnel regulations.* —

The record further disclosed that appellant seeks to”

represent the entire craft or class of employees of appellee

in the clerical, office, stores, fleet and passenger service,

numbering some 19,170 employees, and has filed an appli-

cation with the National Mediation Board asking for

such certification under Section 2, Ninth, 45 U.S.C. § 152,

Ninth, and there is now pending before the Ceurt of

Appeals of the District of Columbia Circuit a case involving

an aspect of that proceeding, styled United Air Lines v.

National Mediation Bourd et al., Case No. 17, 77.

2 Appellee contends that, is a — of coming under its per-

sonnel regulations, these former Capital employees have realized

an improvement in their pay and related benefits. We agree with

appellant that this is not a matter of legal significance in this case.

RN oe A na TT ME LS oh wend o. 2 oo

7a

If the District Court had exercised jurisdiction ‘in this

case and had granted the relief sought in the complaint,

such a determination clearly could have applied to ne more

than the 2700 former Capital employees, constjPiting .a

minority of this class or craft of appellee’s employees, 530

of whom are now represented by the Intetygt?6nal Associa-

' tion of Machinists. Such an impractical result demon-

strates the soundness of the holding of the Supreme Court

‘in the three above-cited cases that there is to be no judicial

intervention in such representation disputes.

By skillful pleading: in this case, appellant has tried to | \

avoid the consequences of these three Supreme Court

decisions above cited, which clearly otherwise’.would be

controlling. Appellant contends that the complaint does

not ask for an adjudication of a dispute concerning repre-

sentation rights, but involves ‘a dispute between the

representative of employee’ and a carrier concerning the

latter’s contract obligations, Tt is significant, however, —

that the first paragraph of the complaint, after stating

that this is an. action for ne od judgment, proceeds

to make the following averment ;

(oo “Tt is broight because there now exists, as will herein-

after be more fully described, an actual contreversy

between the parties with respect to maintenance of a.

collective bargaining agreement executed pursuant to

the provisions of the Railway Labor Act (45 U.S.C.A.

Section 151 et seq.).’’ .

Looking through form to sabstance, we agree with the

District’ Court that, although the suit is cast in the form -

of an action under. the law of contracts, it in fact involves

a répresentation dispute. Even though an action is brought

as one sounding-in contract the courts have no jurisdiction

.“*whére ‘validity’ of the contract depends upon the merits

of a representation dispute.’’ Division No. 14, Order of

Radio. vinstectn spate v. Leighty, 298 F.2d 17, 20 (e A. 4).

a . , ~

Sa.

Appellant relies strongly upon the fact*that, prior to

instituting this action, it filed with the National Mediation

- Board an application pursuant to Section 5, nena, of the

Railw ay Labor Act, 45 U.S.C. §155, Second, for an inter-

‘pretation of the application or meaning of the collective

_bargaining agreement here sought to be enforced, but the

Board found that it did nct have jurisdiction to spell out

the. rights and obligatiog® of the parties after the merger

of Capital into appellee. It is argued that the dismissal of

the complaint by the District Court leaves coppellant with-

out any forum in which to adjudicaté appellee’ s obligations

under appellant’ s agreement with Capital. ©

As hereinabove pointed out,: appellant thereafter filed

an applicatiop with the National Mediation Board asking

for certifiéation ' to represent the entire craft or class of

' appellee’s employees in the clerical, office, stores, fleet and

passenger service, and that a. is pending at the-

present time.

Regardless of what action may have been taken or may

hereafter be taken by thé National Mediation Board in

this dispute, it is our opinion that the District Court-was

correct in holding that it did not have jurisdiction.’ As said

by the Supreme Court. in. General ieasred v. . M, AK. S.,

320 U.S. 323, 336-37 :.

“Tt seems to. us plain that whert Congress came to

the question of these jurisdictional disputes, it chose

not to leave their solution to the courts. . ... How-

ever wide may be the range of jurisdictional disputes

. the courts to resolve them. . If the present dis

falls within § 2, Ninth, the administrative rem

embraced within § 2, Ninth, Congress did not spate

y is

exclusive.’ If a narrower view of § 2, Ninth is taken, it :

is difficult to believe that. Congress saved some juris-

dictional disputes for the Mediation Board and sent.

the parties into the federal courts to resolve the

others.

“In view of the pattern of this legislation and its

history the command o: the Act should be explicit and

: 9a

t “purpgse to afford a judicial wndée plain before

ree ‘obligation enforceable in the courts should he im-

ied. : Unless that test is met the assumption must be

that Congress fashioned a remedy available only in

_ other tribunals. There may be as a result many areas °

in this field where neither the administrative nor the ~«

judicial function can be utilized. But that is only to

be expected where Congress still places such great

reliance on the voluntary process of conciliation,

mediation and arbitration. . . .: Courts should not

rush in where Congress has not chosen to tread.’’

‘In Division No. 14, Order of Radio Telegraphers v.

_ Leighty, 298 F.2d 17, 19 (C.A. 4), involving a merger of

“railroads, the Court dismissed for lack of jurisdiction, |

saying: be : 3 ‘ .

“This trilogy of cases [referring to the three Supreme

Court decisions above cited] authoritatively deter-

mines that judicial intervention in railway labor dis-

_ putes is restricted to the narrowest scope; that large’

segments of this field remain subject to the voluntary

processes of conciliation, mediation. and arbitration;

- that particularly in representation disputes the adju-

dicatory function has béen committed by Congress to

the National Mediation Board. . . .”’

All the cases relied upon by appellant have been con-

sidered carefully, including: Steele v. Louisville & Nash-

ville R.R. Co., 323 U.S. 192; Virginian Railway Co. v.

System Federation, 300 L.S. 515; Brotherhood of Railroad

Trainmen v. Smith, 251 F.2d 282 (C.A. 6), affirming

144 F. Supp. 869 (S.D. Ohio); Commercial Telegrapher>’

Umion v. Western’ Union Telegraph Co., 53 F. Supp. 90

(D.D.C.); and Livingston v. John Wiley & Sons, Inc., 313

F.2d §9 (C.A. 2), cert. granted 373 U.S. 908. We find all

these cases to be distinguishable from this case, since we

. hold that the instant case involves a representation dispute

and not merely an action sounding in contract. :

The action of the District Court in dismissing the com-

plaint for lack of jurisdiction is affirmed.

APPENDIX C

Memorandum Opinion of District Court

(Filed August 9, 1962)

Although the defendant’s motion. is alternative in form,

for present purposes it may be stated that this case has

been submitted to the Court on cross motions for summary

judgment ; the alternative request of the defendant’s

motion is that the action be dismissed for lack of jurisdic-

tion. Each party has, filed extensive, even exhaustive,

meioranda in support of its own position and in opposition

- * to that urged by the other, and has filed protracted and

detailed affidavits. Additionally, careful and capable oral

- arguments were made, and ‘it might be-stated that the

‘transcript of that argument has been reread since the other

filings and authorities have been studied.

After ‘consideration of the various contentions pre-

sented, few of which can be summarily disposed of, it has

been concluded that the first ground set forth in the

defendant’s motion provides an obstacle to the taking of

jurisdiction by this court. That ground is stated in the

motion as follows: |

‘$1. The Court is without jurisdiction of this cause since

~™. sit relates to a dispute as to who are the representa-

tives under*the Railway Labor Act of certain of the

employees of United Air Lines, Inc. Exclusive |

» jurisdiction ‘to determine such a dispute vests with

“the National. Mediation Board under the provisions

of Section 2, Ninth, of the Railway Labor Act

(45 U.S.C. § 152, Ninth). 14

Despite some possible clouding of this sda and perhaps —

even some attempted shift of position, on the part of the

plaintiff,,the fact remafAs that its Complaint clearly states

that this action was br ought because of the existence of

‘‘an actual controversy’? under a ‘‘collective bargaining

agreement executed pursuant to the provisions of the Rail-

way Labor Act (45. @S.C. Sections 151 et seq. )%. After

having so brought. the - action, plaintiff now contends

(p. 32, plaintiff’s first brief) that the issue here presented

is 3 “for the eourts — the law of contracts ... and not .

lla

an issue within the competence of the Mediation Board

under the Raiiway Labor Act.’”? . _

Under this theory, and upon the contention that this suit

is not concerned with either a ‘‘representation oe snag

or a ‘‘jurisdictional dispute between labor organizations,’’

plaintiff. seeks to avoid the consequences of three 1943

decisions by the Supreme Court which would otherwise be

controlling. (Switchmen’s Union of North Americz v.

Natjonal Mediation Board, 320 U.S. 297 ; General Committee

v. M.K.T.R. Railroad Co., 320 U.S. 323; and General Com-

mittee v. Southern Pacific Co., 320 USS. 338). Without here

holding that this action fails to fall within either of those

’ two categories nor that the triune of 1943 cases are limited

thereto, we find them to have present application.

Plaintiff has urged (p. 7, second brief ) that Randolph v.

Missouri, K. é T. R. Co., 85 F. Supp, 846 (D.C. Mo., 1949),

is in point, -but it appears to be distinguishable on the

facts. It is true that this plaintiff had earlier attempted —

to have the National Mediation Board declare that it was

the collective « bargaining representative of. certain of .

defendant’s employees by requesting an interpretation of

a mediation agreement (Complaint, Exhibit B). However,

the plaintiff has never requested that the Board investigate:

any dispute as to who has been chosen by a majority of

the employees as their authorized representative, nor has

the plaintiff requested the Board to make a bargaining

agent certification: The latter two ‘requests are among .

those within the jurisdiction of the National Mediation

‘Board (45 U.S.C. Section 152, Ninth). Hence the rationale

of the Randolph case has no application here.

In spite of the fact that anything said following the

above expression of our conclusion is obiter dictum, we

feel constrained to observe that despite its own protesta-

tions we fail to see how this action could be consummated

without .joinder of the International Association of

Machinists.

Defendant’s motion to dismiss for lack of Juciedivtion i is.

found to be well taken.

12a

APPENDIX D

STATUTES INVOLVED

Judicial Code to

Sections 1331, 1337, 2201 and 2202 of Title 28 of the United

States Code (28 U:S.C.A., Sections 1331, 1337, 2201 and

2202) : (ota

Section 1331: .

‘‘The district courts shall have original jurisdiction

- of all. civil actions wherein the maiter in controversy

- exceeds the sum or-value of $3,000, exclusive of interest °

and ‘costs, and arises under the Constitution, laws or

. treaties of the United States.”’ .

Section 1337+

‘‘The district courts shall have original jurisdiction

-of any civil action or proceeding arising under any

Act of Congress regulating commerce or protecting

trade and commerce against restraints and monop-

olies.’” :

2 * * * *

Section 2201:

«Tn a case of actual controversy within its jurisdic-

tion, except with respect to Federal taxes, any court

of the United States, upon the filing of an appropriate

pleading, may declare the rights and other legal -

relations of any interested party seeking such declara-

tion, whether or not further relief is ‘or could be

sought. Any such declaration shall have the force and

effect of a final judgment or decree and shall be review-

- able as such.”” ~

+ « ca * _«

Section 2202: *

‘‘Further necessary or proper relief based on a

declaratory judgment or decree may be granted, after

reasonable notice and hearing, against any adverse

party whose rights have been determined by such

judgment.”’ = —- - a8

13a

.

Railway Labor Act

Sections 2, Fi st; 2, Seventh; 2, Ninth; 5, Second; Section

6 and Section 204 of the Railway Labor Act (45 U.S.C.A.,

Sections 152, First; 152, Seventh; 152, Ninth; 155, Second;

156 and 184): .

Section 2, First:

‘First. It shall be the duty of all carriers, their ©

. officers, agents, and employees to’ exert every reason-

able effort to make and maintain agreements concern-

ing rates of pay, rules, and working conditions, .and to

settle all disputes, whether arising out of.the applica-

tion of such agreements or otherwise, in order to avoid

any interruption to commerce or to the operation of

- any carrier growing out of any dispute between the ©

carrier and the emplovees thereof.’’ ,

® *- e 5 e .

Section 2, Seventh:

**Seventh. No carrier, its officers, or agents 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 156 of this title.’’

Y * * * e a

Section 2, Ninth:

‘Ninth. If any dispute shall arise among a carrier’s

employees as to who are the representatives of such

‘employees designated and authorized in accordance

with the requirements of this chapter, it shall be the

duty of the Mediation. Board, upon request of either

party to the dispute, to investigate such dispute and to

certify to both parties, in writing, within thirty days

after the receipt of the invocation of its services, the

_ name or names of the individuals or organizations

that have been designated and authorized to represent

the employees involved in the dispute, and certify the

same to the carrier. Upon receipt of such certification -

' .the carrier shall treat with the represéntative so

certified as the representative of the craft or class for

the purposes of this chapter. In such an investigation,

the Mediation Board shall be authorized to .take a

l4a

* secret ballot of the employees involved, or to utilize .

any other appropriate method -of ascertaining the |

names ‘of their duly designated and authorized repre-,

sentatives in such manner as shall insure the choice

of representatives by the employees without inter- —

ference, influence, or coercion exercised by the carrier.

In the conduct of any election for the purposes herein

indicated the Board shall designate who may par-

ticipate in the election and establish the rules to govern

the election, or may appoint a committee. of three

“neutral persons who after hearing shall within ten

days. designate the employees who may participate in

‘the election. The Board shall have access.to and have .

_ “power to make copies of the books and records of the

carriers to obtain and utilize such information as may

- be deemed necessary by it to carry out the purposes

and provisions of this paragraph.’’

; * « * * = -*

Section 5, Second:

‘Second. In any case in which a controversy arises

-over the meaning of the application of any agreement.

reached through mediation under the provisions of

this chapter, either party to the said agreement, or

both, may apply to the Mediation Board for an inter-

pretation of the meaning or application of such agree-

ment. .The said Board shall upon receipt.of such

request notify the parties to the controversy, and after ~

-a hearing of both sides give. its interpretation within

. thirty days.”’

oo J 7 ee: * * .")

Section 6:

‘“‘Carriers and representatives of the employees

shall give at least thirty days’ written notice of an

intended change in agreements affecting rates of pay,

rules, or working conditions, and .the time and place

for the beginning of conference between the repre-

sentatives of the parties interested’in such intended

changes shall be agreed upon within ten days after

the receipt of said notice, and said time shall be within

the thirty days provided in the notice. In.every case

where such notice of intended change has been given,

or conferences are being held with reference thereto,

:

| ; 15a

or the services of the Mediation Board have been ~

. requested by either party, or said Board has proffered

. its services, rates of pay, rules, or working conditions

shall not be-altered by the carrier until the controversy

has been.finally acted upon, as required by section 155

of this title, by the Mediation Board, unless a period

of ten days has elapsed after termination of con-

ferences without request for or proffer of the services

of the Mediation Board.”’ . -

e e : e @ .

Section 204:

‘‘The disputes between an employee or group of

employees and a carrier or carriers by air growing.

out of grievances, or out of the interpretation or

application of agreements concerning rates of pay,

rules, or working conditions, including cases pending —

and unadjusted on April 10, 1936 before the National.

Labor Relations Board, shall be handled in the usual

manner up to and including the chief operating officer

of the carrier designated to handle such disdutee : but,

failing to reach an adjustment.in this: manner, the

disputes may be referred by petition of the parties

or by either party to an appropriate adjustment board,

as hereinafter provided, with a full statement of the

facts and supporting data bearing: upon the disputes.

“Tt shall be the duty of every carrier and of its

employees, acting through their representatives,

selected in accordance with the provisions of sections

181-188 of this title, to establish a board of adjustment

‘of jurisdiction not exceeding the jurisdiction which

may be lawfully exercised by system, group, or

regional boards of adjustment, under the authority of

section 153. of this title. ;

‘‘Such boards of adjustment. may be established by”

agreement between employees and carriers either on

any individual carrier, or system, or group of carriers

by air and any class or classes of its or their employees;

or pending the establishment of a permanent National

Board of Adjustment as hereinafter provided. Nothing

in*sections 151-163 and 181-188 of this title shiall pre-

vent said carriers by air, or any class.or classes of

their employees, both acting through their rey resenta-

.

16a

tives selected in accordance with provisions of sections

181-188 of this title; from mutually agreeing to the

establishment of a National Board of Adjustment of

temporary duration and -of similarly limited juris-

diction.”’ _

Delaware Statutes

: Section 328 of the Delaware General Corporation Law

(8 Del. C., Section 328) : . | 3

**§ 328. Liability of corporation, ete., impairment by

certain transactions.

‘*The liability of corporations created under this .

chapter, or existing under the laws of this State, or

the stockholders, directors or officers thereof, or the.

rights or remedies of the creditors thereof, .or of

‘persons doing or transacting business with the cor-

poration, shall not in any way be lessened or impaired

_by the sale thereof, or by the inerease or decrease in

the capital stock of any such corporation, or by the

consolidation or merger of two or more corporations

or by any change or amendment in the certificate of

incorporation.’’ ° Je,

‘ites 259 (a) of the Delaware General Corporation

Law (8 Del. C, Section 259 (a)): .

eg 259. Status, rights, liabilities, etc., of constituent

and. surviving corporations following merger or con-

. solidation. :

‘“‘When an agreement of consolidation or merger

shall have been signed, acknowledged, filed and

recorded, in accordance with the requirements. of this

subchapter, for all purposes of the laws of this State

the separate existence of all the constitnent corpora-

tions, party to said agreement, or of all such con-

stituent -corporations ‘except the one into which the

other or others of such constituent corperations have

been merged, as the cAse may be, shall cease and the

constituent corporations shall become a new corpora-

tion, or be merged into one of such corporations, as the

case may be, in accordance with the provisions of said

ABR OD ee 3 Te 8 — er. PO lt ~ - eo ce

17a

‘ m

agreement, possessing all the rights, privileges, powers

and franchises as well of a public as of a private

nature, and being subject to all the restrictions,

disabilities and duties of each of such corporations

so consolidated or merged, and: all and singular, the

rights, privileges, powers and franchises of each of

Said corporations, and all property, real, personal and

mixed, including in the case of banks or trust’ com-

panies, without any order or any action on the part

of any court or otherwise, appointments, designations,

‘and nominations and all.other rights and interests as

trustee, executor, administrator, registrar of stocks

and bonds, guardian of esfates, assignee, receiver,

trustee of estateS of lunatics and in every other

fiduciary. capacity, and all debts due to any of said

constituent corporations on whatevér account; as well -

for stock subscriptions as all other-things in action or

belonging to each of such- corporations shall be vested

in the corporation resulting from or. surviving such

consolidation or merger; and all property, rights,

privileges, powers and franchises, and all and every

other interest shall be thereafter as effectually the

property: of the resulting or surviving corporation

as they were of the Several and respective constituent

corporations, and the title to any real estate vested

by deed or otherwise, under the laws of this State, in

any of such constituent corporations, shall not revert

or be in any way impaired by reason -of this chapter;

but all rights of creditors and all liens upon any

property of any of said constituent corporations shail

be preserved unimpaired, and -li debts, liabilities, and

duties of the respective constituent corporations shall

thenceforth attach to said resulting or surviving cor-

poration, and may be enforced against it to the same

extent as if said debts, liabilities and duties had been

incurred or contracted by it.’’