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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_0552%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1965
- **Citation:** 379 U.S. 26

## Text

ow .
ww

a

— IN THE

| Superme Gout the Mat Bates |
ae 5 .

\

‘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

ris

oad
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 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

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

“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 ColumThe 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.’’

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_0552%3A2. Public record. Not legal advice.