Opposition — Jasinski v. International Ass'n of Machinists & Aerospace Workers
Supreme Court brief1976
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IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1975
MATHEW S. JASINSKI, et al.,
Petitioners,
versus
NTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS,
Respondent.
BRIEF AND APPENDIX IN OPPOSITION TO
THE PETITION FOR CERTIORARI
Plato E. Papps J. R. Goldthwaite, Jr.
1300 Connecticut 600 Rhodes-Haverty Bldg.
Avenue, N.W. 134 Peachtree Street
Washington, D.C. Atlanta, Georgia 3033
20036
Counsel for Respondent
Of Counsel
January 1976
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IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1975
NO. 75-634
MATHEW S. JASINSKI, et al.,
Petitioners,
versus
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS,
Respondent.
BRIEF AND APPENDIX IN OPPOSITION TO
THE PETITION FOR CERTIORARI
Plato E. Papps J. R. Goldthwaite, Jr.
1300 Connecticut 600 Rhodes-Haverty Bldg.
Avenue, N.W. 134 Peachtree Street
Washington, D.C. Atlanta, Georgia 30303
20036
Counsel for Respondent
Of Counsel
January 1976
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INDEX
Index to Appendix .....--+ +--+. il
Authorities Cited .......+ +. iv
Opinions Below .....++e++-e+-. 1
Statement of the Case .....-- 2
Summary of Facts ° 4
Discussion
1. The Courts Below Did
| i a a oe ae ee ee ee 7
2. Petitioners State No
Claim Upon Which Relief
May Be Granted ......-.- 15
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(1)
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INDEX TO BRIEF
APPENDIX _
NMB Decision No. R-3639,
4 NMB Determinations 14 .
NMB Certification No. R-3639
NMB Decision No. R-3712,
4 NMB Determinations 54 .
NMB Certification No. R-4270
NMB Certification No. R-4336 .
Reynolds, et al. v. I.A.M.,
87 LRRM 2133 (M.D. N.C.,
1973, unpublished decision) .
Reynolds, et al. v. I.A.M.,
498 F.2d 1397 (4th Cir.
1974, unpublished per
curiam decision) ....
Strong v. Sheet Metal Workers,
etc., 75 L.C. 410313 (N.v.
Gees “Serer «¢ 8 © © © ee
Petitioners’ Application to
NMB in C-4294 ......
EAL Statement of Position
NMB Letter to I.A.M. re:
Application of Airline
Mechanics Association...
I.A.M. Statement of Position
(ii)
A-57
A-58
an a -
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Index to Brief Appendix
NMB Dismissal
Petitioners’ Complaint in
the District Court
Motion to Dismiss
(iii)
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AUTHORITIES CITED
Opinions
Aeronautical Radio, Inc. v. N.M.B.
380 F.2d 624 (D.C. Cir. 1967),
cert. den. 289 US 912 (1967)
Air Line Stewards and Stewardesses
Asso. v. N.M.B., 294 F.2d 910
(D.C. Cir. 1961), cert. den.
369 US 810 a a
Amalgamated Asso. of Street,
Electric Ry. & Motor Coach
Employees of America v.
Lockridge, -403 US 274 (1971)
Balowski v. United Automobile,
etc. Workers, 372 US 829
(6th Cir. 1967)
Brotherhood of Railway and
Steamship Clerks, etc. v. N.M.B.
374 F.2d 269 (D.C. Cir. 1966)
Brotherhood of Railway and
Steamship Clerks, etc. v. United
Transportation Service, etc.,
320 US 715 (1943)
Brotherhood of Railway and
Steamship Clerks, etc. v.
Virginian Ry. Co., 125-F.2d
853 (4th Cir. 1942)
Ford Motor Co. v. Huffman
345 US 330 (1952)
(iv)
18
17
17
18
16
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Opinions
Gainey v. Brotherhood of
Ry. Employees, 313 F.2d
318 (3rd Cir. 1960)
General Committee of Adjustment,
etc. v. Missouri-Kansas-Texas
Railroad Co., 320 US 323 (1943)
Hardcastle v. Western Greyhound
Lines, 303 F.2d 182 (9th Cir.
1962) ‘-. 6 8 *« « 6 2
Hess v. Petrillo, 259 F.2d 735
(9th Cir. 1958) s * *
Homan Mfg. Co. v. Russo, 233
F.2d 547 (7th Cir. 1956)
Humphrey v. Moore,
375 US 335 (1964)
International Asso. of
Machinists, etc. v. Street,
367 US 740 (1961)
Leedom v. Kyne,
358 US 184 (1958)
Long v. Georgia Kraft Co.,
238 F.Supp. 605 (N.D. Ga.
1971), aff'd 455 F.2d 331
(Sth Cir. 1972) ,
Order of Ry. Conductors v. N.M.B.,
141 F.2d 266 (D.C. Cir. 1944)
(v)
17
17
17
17
16
16
15
17
Opinions
Reynolds, et al v. Int. Asso. of
Machinists, etc., 87 LRRM 2133
(M.D. N.C. 1973), aff'd per curiam
in unpublished decision, 498 F.2d
1397 (4th Cir. 1974) (both deci-
sions reprinted in Brief Appendix,
Dn «6 « 6 6 8 + & & © eS 6 6 © eee
Rose, et al. v. Brotherhood of
Railway and Steamship Clerks, etc.,
181 F.2d 944 (4th Cir. 1950),
cert. den. 340 US 851 (1950) .... 9
Steele v. Louisville & Nashville
R. Co., 323 US 192 (1944) a a a
Strong v. Sheet Metal Workers, etc.,
75 L.C. 910313 (N.D. Calif. 1974)
(decision printed in Brief Appen-
Game SMENGF ce ec se eseeneee te s ae
Switchmen's Union v. N.M.B.,
320 US 297 (1943) nate * & = & & Fenn
UNA Chapter, Flight Engineers
Int. Asso. v. N.M.B., 294 F.2d
903 (D.C. Cis. 19613) . «© ese ee eee F
Vaca v. Sipes,
see US A72 (2967) «© se we we eo eo oe eo co SE
(vi)
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Statutes
National Labor Relations Act,
as amended, 29 USC 15l, et seq.
Section 8(b); 29 USC 158(b) : se <2 ae
Railway Labor Act,
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Section 2, Ninth;
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Official Publications
Determination of Craft or Class
of the National Mediation Board,
Vol. 1 and 4, G.P.O.
In the Matter of Representation
of Employees of Erie Railroad Co.,
Case No. R-185l, 1 NMB Determi-
mations 4986 .<«-e-eeeeecevevcee
In the Matte of Representation
of Employees of Eastern Airlines,
Inc., (1) Mechanics and Related
Employees (2) Stock-Clerks
(3) Print Shop Employees, Case
No. R-3639 (1963), 4 NMB Determi-
nations 14 (Reprinted in Brief
AGPONGIN, 19EFG) « « © « « co oc ow wo Seka
(vii)
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Official Publications
In the Matter of the Application
of Aircraft Mechanics Fraternal
Asso., etc., Involving Employees
of Eastern Air Lines, Inc., etc.,
Case No. R-3712 (1965), 4 NMB
Determinations 54 (Reprinted in
Brief Appendix, infra) ..... . 4,12
(viii)
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IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1975
NO. 75-634
MATHEW S. JASINSKI, et al.,
Petitioner,
versus
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS,
Respondent.
BRIEF IN RESPONSE TO
THE PETITION FOR CERTIORARI
OPINIONS BELOW
The per curiam affirmance of the Dis-
trict Court opinion by the United States
Court of Appeals for the Fifth Circuit,
issued July 29, 1975, is unpublished but
is reported at 517 F.2d 478. The opinion
of the United States District Court for
the Northern District of Georgia, entered
February 4, 1975, was not published in
the West System but is unofficially re-
ported at 90 LRRM 3021.
The Court of Appeals and District
Court decisions are printed in the Appen-
dix to the petition for certiorari at
pages 31 and 22, respectively.
STATEMENT OF CASE
Plaintiffs (Petitioners) filed civil
action for alleged individual damages in
the District Court under the Railway Labor
Act [45 U.S.C. §151, et seg.], alleging
that the Machinists Union had violated the
Act and its duty to fairly represent plain-
tiffs by including the craft or class of
Airline mechanics and related employees of
Eastern Airlines, of which plaintiffs are
members, under the same collective bargain-
ing agreemer.t with other employees of Eas-
tern who are members of other crafts and
classes. Brief Appendix, infra, A61-A71.
Defendant (Respondent) filed motions
to dismiss for want of jurisdiction and
for failure to state a claim upon which
relief may be granted. Brief Appendix,
infra, A72.
The District Court granted the mo-
tion to dismiss for want of jurisdiction,
saying:
. . This is a dispute between
che union and its [represented]
employees over the propriety of
including various crafts and
classes of employees in one bar-
gaining unit. Such a determina-
tion lies within the exclusive
jurisdiction of the National
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Mediation Board, as the Court has
noted above. The failure of the
National Mediation Board to char-
acterize this case as the plain-
tiff urges, and as this Court
holds, is a matter to be pressed
upon the Board by the plaintiffs
in subsequent proceedings. .. .-
(Appendix to the petition for
certiorari, 29; explanatory
bracket and emphasis supplied).
Thus, the District Court held that
the power to determine what crafts and
classes of employees are to be included
in a unit appropriate for collective bar-
gaining under the Railway Labor Act lies
within the exclusive jurisdiction of the
National Mediation Board; and that, if
the National Mediation Board improperly
refused to exercise its statutory juris-
diction in this case, such is a matter to
be attacked directly, rather than colla-
terally as plaintiffs attempt to do in
this proceeding.
The District Court therefore dismis-
sed plaintiffs' action for want of juris-
diction and did not pass upon the union's
motion to dismiss for failure to state a
claim.
The Court of Appeals affirmed, per
curiam, without a written opinion.
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SUMMARY OF FACTS
The history of bargaining between
Eastern Airlines and the Machinists Union
is complex. That history is traced in NMB
Case No. R-3639 (C-3355), decided December
5, 1963, 1/ and in Case Nos. R-3712, R-
3713, R-3714, decided July 14, 1965, 2/
and in other materials contained in Brief
Appendix, infra.
The Machinists Union has become the
representative of several classifications
of EAL employees, either through voluntary
recognition or certification beginning
December, 1937, and:
Over the years since 1937, under
IAM representation all of these
employees gradually through suc~
cessive negotiations have been
included under a single collec-
tive bargaining agreement.
(NMB Decision No. R-3639,
December 5, 1963, 4 NMB Deter-
minations, at 17).
In 1965, Aircraft Mechanics Fraternal
Association sought separate representation
1/ Volume 4, Determination of Craft or
Class of the National Mediation Board,
page 14; decision reprinted in Brief
Appendix, infra, at Al.
2/ Volume 4, Determination of Craft or
Class of the National Mediation Board,
page 54; decision reprinted in Brief
Appendix, infra, at Al3.
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of mechanics and related employees. An
imminently qualified disinterested com-
mittee, appointed by MNB pursuant to Sec~
tion 2, Ninth of the Railway Labor Act, 3/
in Case Nos. R-3712, R-3713, R-3714, found
that the separate representation requested
by AMFA was inappropriate. 4 NMB Determi-
nation 54, July 14, 1965, at 66, et seg.
That determination broadened the classifi-
Cations of employees included within the
Craft or class of airline mechanics and
related employees from the determination
two years earlier in R-3639. AMFA declin-
ed to participate in an election in the
broadened unit. Op. Cit; supra, at 66.
In March, 1974, Jasinski, et al.,
filed application with the National Medi-
ation Board asking for a determination
that EAL and Machinists were acting im-
properly by including all Machinists-
represented employees under a single con-
tract; but as the basis of their complaint,
Jasinski, et al., requested NMB to revert
to the craft or class of airline mechanics
defined in R-3639. 4/ Thus, petitioners’
claim in this case substantially reiter-
ates the 1965 request of AMFA and requires
a determination of craft or class as an
essential element of the relief requested.
Upon request for comments by NMB,
EAL responded that the appropriate unit
3/ 45 U.S.C. § 152, Ninth.
4/ Petitioners' application was docketed
by NMB as No. C-4294 and is reprinted in
Brief Appendix, infra, at A49.
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had been defined in R-3712 and that the
Complaint should be dismissed. 5/ IAM
concurred in that opinion. 6/ Neither
EAL nor IAM suggested that NMB was with-
out jurisdiction to adjudicate Petition-
ers' Complaint.
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The Executive Secretary of the Na-
tional Mediation Board administratively
dismissed Petitioners’ application for
want of jurisdiction in the NMB,
to determine the manner
in which a carrier and a union,
certified for one or more crafts
or classes, bargain, and thus
the questions which you raise
are not properly resolved by the
Mediation Board, but may be more
effectively resolved by direct
conferences between the affected
parties. .. . (Brief Appendix,
infra, at A59).
Rather than launch a direct challenge
in the District of Columbia to the refusal
of NMB to assert jurisdiction, petitioners
elected to attack the NMB action collater-
ally by civil action for individual dam-
ages in the Northern District of Georgia.
5/ See letter of response, Brief Appen-
dix, infra, at A55.
6/ Brief Appendix, infra, at A58. See
also A57.
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v. National Mediation Board, 320 U.S. 297,
COMMENTS
1. The Courts Below Did Not Err
In Switchmen's Union of North America
300,
301 (1943), this Court said:
The Act in §2, Fourth writes
into law the 'right' of the ‘'major-
ity of any craft or class of em-
ployees' to ‘determine who shall
be the representative of the craft
or class for the purposes of this
Act'. That ‘right is protected
by §2, Ninth which gives the Medi-
ation Board the power to resolve
controversies concerning it and
as an incident thereto to deter-
mine what is the appropriate craft
or class in which the election
should be held. See Brotherhood
of Railroad Trainmen v. National
Mediation Board, 88 F.2d 757; Bro-
therhood of Railroad Trainmen v.
National Mediation Board, 135 F.2d
780. A review by the federal dis-
trict courts of the Board's deter-
mination is not necessary to pre-
serve or protect that ‘right’.
Congress for reasons of its own
decided upon the method for the
protection of the ‘right' which
it created. It selected the pre-
cise machinery and fashioned the
tool which it deemed suited to
that end. Whether the imposition
of judicial review on top of the
Mediation Board's administrative
7.
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determination would strengthen
that protection is a consider-
able question. All constitu-
tional questions aside, it is
for Congress to determine how
the rights which it creates
shall be enforced. Tutun v.
United States, 270 U.S. 568,
576-577. In such a case the
specification of one remedy
normally excludes another. See
Arnson v. Murphy, 109 U.S. 238;
Wilder Mfg. Co. v. Corn Pro-
ducts Refining Co., 236 U.S.
165, 174-175; United States v.
Babcock, 250 U.S. 328, 331;
Sunshine Anthracite Coal Co.
v. Adkins, 310 U.S. 381, 404.
The Court went on to rule that:
‘ Under this Act Congress
did not give the the Board dis-
cretion to take or withhold ac-
tion, to grant or deny relief.
It gave it no enforcement func-
tions. It was to find the fact
and then cease. Congress pre-
scribed the command. Like the
command in the Butte Ry. case
it contained no exception. Here
as in that case the intent seems
plain -- the dispute was to
reach its last terminal pcint
when the administrative finding
was made. There was to be no
dragging out of the controversy
into other tribunals of law.
(320 U.S., at 305).
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That ruling has been adhered to and
followed with uniformity. See, e.g.,
General Committee of Adjustment, etc. v.
Missouri-Kansas-Texas R.R. Co., 320 U.S.
323 (1943); Brotherhood of Railway and
Steamship Clerks, etc. v. United Trans-
rtation Service, etc., 320 U.S. 715
r1943); Rose, et al. v. Brotherhood of
Railway and Steamship Clerks, etc., 181
F.2d 944 (4th Cir. 1950), cert. den. 340
U.S. 851 (1950); UNA Chapter, Flight En-
ineers' Int. Assoc. v. N.M.B., 294 F.2d
9 (D.C. Cir. 1961); Brotherhood of Rail-
way and Steamship Clerks, etc. v. N.M.B.,
374 F.2d 269 (D.C. Cir. 1966); Aeronauti-
cal Radio, Inc. v. N.M.B., 380 F.
(D.C. Cir. 1967), cert. den. 289 U.S. 912
(1967); Reynolds, et al. v. Int. Assoc.
of Machinists, etc., 8? LRRM 2133 (M.D.
N.C. 1973), aff'd. per curiam in an un-
published decision, 498 F.2d 1397 (4th
Cir. 1974). 7/
One of the principal determinants
which NMB has always considered in defin-
ing an appropriate craft or class is the
history of bargaining between the carrier
and unions with respect to the affected
employees. In other words, when it is
asked to consider what employees shall be
included in a craft or class, NMB looks
to what classifications of employees the
parties themselves have regarded to be
7/ Copy of the District Court and Court
of Appeals decisions in the Reynolds case
are contained in the Appendix to this
Brief, infra, at A32 and A39, respectively.
9.
cohesive, interrrelated classifications
of employees with a community of interest
appropriate for inclusion under a single
collective bargaining agreement. If the
grouping of employees under a single a-
greement has resulted in a history of suc-
cessful bargaining over a period of years,
great weight is given to that history in
determining the appropriate class or craft.
For example, in Case No. R-1851, 8/
which was very similar on its facts to
the present issue, the Board said:
The reasons advanced by the MMP
for now desiring a segregation of
the craft or class are: first,
the licensed personnel are men in
charge of the vessel and as such
their conditions of employment
are separate and distinct from
the unlicensed personnel; second-
ly, that by reason of the larger
number of unlicensed men employ-
ed, this latter group can always
out-vote the licensed officers in
an election.
It is clear that the first rea-
son constitutes a reversal of the
position taken by MMP in R-337
where it contended that ‘the un-
licensed deck hands were in train-
ing for the licensed positions of
8/ In the matter of Employees of Erie
Railroad Company, Case No. R-1851l, 1
Determination of Craft or Class of NMB
488.
10.
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masters, mates or pilots and,
therefore, were part of the same
craft.' Even assuming, however,
that the facts tend to support
this argument, it certainly can-
not be said that it is entitled
to any greater weight than the
argument advanced more than ten
years ago. In reaching a deter-
mination, therefore, as to which
of the two diametrically opposed
views will tend to promote in-
dustrial peace resort must be
had to the history of collective
bargaining on the property. When
this is done, it becomes abun-
dantly clear that the findings
set forth above support a con-
clusion that the composite craft
or class produced a minimum of
friction.
rn
i ; i ‘ * : . * ‘ >» ‘ - ‘ . “ “ » 4 J ;
The second reason assigned for
a change in the craft or class
finds its basis solely on a de-
sire on the part of the licensed
personnel to bargain separately
from the unlicensed personnel.
It is true that the desires of
the employees are always an im-
portant consideration in fixing
craft or class lines. In this
instance, however, that factor
is outweighed by the record of
successful bargaining by the
larger craft over a period of
years. (1 NMB Determinations,
at 491).
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Similar weight was given to histor-
ical bargaining considerations in Cases
Nos. R-3639 (C-3355) and R-3712. 9/
The impartial committee in R-3712
said:
This policy of primary reliance
on ‘the customary groupings of
the employees into crafts and
classes as it has been estab-
lished by accepted practice over
a period of years. .. .' has
remained the policy of the Board
since its establishment. (4 NMB
Determinations, at 60).
Thus, the NMB, having exclusive
authority so to determine, considers the
grouping practices historically utilized
by the carrier and the union when it de-
fines classes and crafts of employees
which are appropriate for bargaining.
Underlying petitioners’ claim in the
District Court is the threshold contention
that IAM and EAL are bargaining with res-
pect to an inappropriate unit (craft or
Class) of employees; but there are three
extant and possible definitions of what
employees should be included in the craft
or class of which petitioners are members.
9/ 4 NMB Determinations 14, 16-22, Brief
Appendix, infra, A3-9, and 4 NMB Determi-
nations 54, 60-66, Brief Appendix, infra,
A19-A25. pate
12.
fam md fy sd fd Pad ~ Pad Pano Pood Doc Dood Dod Pend Dent Yam Po
Re The craft or class of airline
mechanics and related employees
defined in 1963 in Case No. R-
3639;
2. The enlarged craft or class of
airline mechanics and related
employees defined in 1965 in
Case No. R-3712;
De The still larger group of em-
ployee classifications which
have historically been grouped
under one contract by EAL and
IAM since 1937. 10/
Only the Mediation Board may deter-
mine which of these definitions, or some
other, is the appropriate one.
Thus, assuming without conceding
that a district court can entertain a
claim that IAM is guilty of an “unfair
labor practice" 11/ for including sever-
al certified crafts or classes under one
contract, a court could not do so until
the Mediation Board has adjudged that
such combination of employee classifica-
tions has not, by virtue of the long and
10/ See discussion in Case No. R-3712,
4 NMB Determinations, at 57, 58, Brief
Appendix, infra, Al6, Al?.
11/ The Railway Labor Act does not de-
fine any union unfair practices compar-
able to those contained in Section 8(b)
of the National Labor Relations Act, as
amended [29 U.S.C. 158(b)].
13.
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successful history of bargaining for such
combined group, become an appropriate
class or craft.
The recent case of Reynolds, et al.
v. International Association of Machinists
and Aerospace Workers, et al., 87 LRRM
2133 (M.D. N.C., CA #C-179-WS-73, Nov. 8,
1973), aff'd per curiam in an unpublished
decision, 498 F.2d 1397 (4th Cir. 1974)
was very similar to the instant case. 12/
There a group of building maintenance em-
ployees contended that they were members
of a craft or class of employees certi-
fied by NMB but had been wrongfully ex-
cluded from the coverage of the collec-
tive bargaining agreement subsequently
agreed between Piedmont Airlines and the
Machinists Union. The plaintiffs sued
the union for unfair representation by
failing to include them under the con-
tract. The District Court said:
3. If plaintiffs are members of
the craft or class of ‘Airline
Mechanics and Related Employees’
of Piedmont Airlines, defendants
are bound by statute to represent
them. However, if plaintiffs are
not members of that craft or
class, defendants owe them no
duty of representation.
4. The primary issue presented
by the complaint is whether
12/ Decisions reprinted in Appellee's
Brief Appendix, infra, A32 and A39.
14.
—
plaintiffs are members of the
craft or class of ‘Airline Mech-
anics and Related Employees’ of
Piedmont Airlines.
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x * *
6. The primary issue presented
by the complaint is within the
exclusive jurisdiction of the
National Mediation Board and
this Court, therefore, is with-
out jurisdiction to entertain
the complaint.
Upon appeal in the Reynolds case,
the Fourth Circuit affirmed, saying:
Per Curiam: After oral argument
we affirm on the opinion of the
district court. Plaintiffs have
the right, under 45 USC §152,
Ninth, to obtain a decision from
the National Mediation Board as
to whether they are included
within the bargaining unit for
which an employment contract has
been negotiated. (Brief Appen-
dix, infra, at A39, A40). 13/
2. Petitioners State No Claim Upon
Which Relief May Be Granted.
This Court has consistently recog-
nized that, through passage of the Railway
13/ Cf. Leedom v. Kyne, 358 U.S. 184 (1958).
15.
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Labor Act, Congress sought a regulatory
scheme which would effectively stabilize
labor relations in the industry. The suc-
cess of the scheme depended on an effec-
tive system of collective bargaining and
mediation by representatives of the par-
ties in dispute. A necessary adjunct to
the scheme involved strengthening union
status in relation to both carriers and
employees. See Int. Assoc. of Machinists
etc. v. Street, 367 U.S. 740, 759,
(1961). Congress saw fit to clothe the
bargaining representative with “powers
comparable to those possessed by a legis-
lative body both to create and restrict
the rights of those whom it represents.”
Steele v. Louisville & Nashville R. Co.,
323 U.S. 192, 202 (1944).
Pursuant to that authority, IAM and
Eastern have historically included all
EAL employees represented by IAM under a
Single collective bargaining agreement.
The NMB gives great weight to the success
of such bargaining in defining appropriate
crafts and classes, thus recognizing a
discretion vested in unions as bargaining
representatives.
Aside from the factual issue concern-
ing what may be the appropriate craft or
class of employees which includes peti-
tioners, discussed ante, IAM clearly has
the discretion, absent bad faith, discri-
mination, or other invidious motivations,
to include all groups of EAL employees
represented by it under one contract. Cf.,
Ford Motor Co. v. Huffman, 345 U.S. 330
(1952); Humphrey v. Moore, 375 U.S. 335
(1964); Vaca v. Sipes, 386 U.S. 171 (1967);
16.
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Amal. Asso. of Street Electric Ry. and
Motor Coach Employees v. Lockridge, 403
U.S. 274 (1971).
If not, the history of bargaining
criterion traditionally utilized by NMB
(and NLRB) is irrelevant and erroneous.
It is not necessary here, therefore,
to decide whether NMB has authority to
issue craft or class determinations with-
out request for an election.
Petitioners alleged only a factual
diminution of voting strength as the ba-
sis of their claim for relief. They set
-. forth no factual allegations which give
rise to a litigible issue of bad faith
or invidious motivation on the part of
IAM in negotiating the single agreement
with EAL. Cf., Balowski v. Int. Union,
UAW, 372 F.2d, 829, 835 (6th Cir. 1967);
Gainey v. Bro. of Ry. Employees, 313 F.2d
318 (3rd Cir. 1960). “Mere unsupported
conclusions of fact or mixed fact and law
are not admitted by a motion to dismiss".
Hess v. Petrillo, 259 F.2d 735 (9th Cir.
1958). Cf., Homan Mfg. Co. v. Russo, 233
F.2d 547 (7th Cir. 1956). “Conclusory
words. . . without a concomitant showing
of lack of good faith do not set forth a
claim". Hardcastle v. Western Greyhound
Lines, 303 F.2d 182, 196 (9th Cir. 1962).
Allegation of loss of individual
voting strength by virtue of absorption
into a larger unit of employees does not,
without more, suffice to show actionable
breach of duty. Long v. Ga. Kraft Co.,
238 F.Supp. 605 (N.D. Ga. 1971), aff'd
17.
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Si
455 F.2d 331 (5th Cir. 1972); Strong v.
Sheet Metal Workers, etc., 75 LC 410, 313
(N.D. Calif. 1974), [decision printed in
Brief Appendix, infra, at A4l].
By refusing to assert jurisdiction in
this case, the Board held that the carrier
and the union have the discretion to in-
clude all units of employees for which the
union is the representative under a single
contract. 14/ Absent a showing of discri-
minatory or invidious motivation, the union
has that discretion under the law.
We return to the words of this Court
in Switchmen's Union v. NMB, with regard
-to determinations of craft or class by
NMB:
- - A review by the federal
district courts of the Board's
determination is not necessary
to preserve or protect that
"right’. . « « (320 U.S. at 301).
14/ Union representation of more than
one craft or class of employees is not
prohibited. Brotherhood of Railway and
Steamship Clerks, etc. v. Virginian Ry.
Co., 125 F.2d 853 (4th Cir. 1942); Air-
Line Stewards and Stewardesses Asso. v.
N.M.B., 294 F.2d 910 (D.C. Cir. 1961);
Order of Ry. Conductors v. N.M.B., 141
F.2d 366 (D.C. Cir. 1944).
18.
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CONCLUSION
For the reasons discussed, the
petition for certiorari should be denied.
Respectfuliy submitted,
pho ad,
R. GOLDTHWAITE, JR.
By:
600 Rhodes-Haverty Bldg.
134 Peachtree Street
Atlanta, Georgia 30303
Counsel for Respondent
Plato E. Papps
1300 Connecticut Avenue, N.W.
Washington, D. C. 20036
Of Counsel
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A-1
APPELLEE'S BRIEF APPENDIX
In the Matter of Representation or Emptorees or Eastern Air
Lines, Inc., (1) Mecuanics anp Retateo Emptoyress (2) Stock
Cuierks (3) Paint Suop Euproyess
Case No. R-3639 (C-3355)—Decided December 5, 1968
Finpinos Upon INVESTIGATION
On April 16, 1965, the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of America, (IBT),
filed an application with the National Mediation Board pursuant
to Section 2, Ninth, of the Railway Labor Act, alleging the ex-
istence of a representation dispute involving employees of East-
ern Air Lines, Inc., (EAL), performing duties of (1) Mechanics
and Related Employees, (2) Stock Clerks, and (3) Print Shop
Employees. At the time the application was filea these employees
were represented for the purposes of the Railway Labor Act by
the Internationa! Association of Machinists, (IAM).
During preliminary investigation of this application, issues
were raised which the Board found required a recorded hearing.
Accordingly, a public hearing was held on July 1 and 2, 1963, at
which ali concerned were provided an opportunity to submit
testimony and documentary evidence in support of their respective
contentions.
Both of the labor organizations party to the dispute and the
carrier submitted briefs which, following an extension of time,
were due on August 5, 1963.
POSITION OF THE PARTIES
The applicant organiza*ion, the IBT, contends that the following
employees of Eastern Air Lines constitute separate crafts or
classes for purposes of representation under the Railway Labor
Act, as amended,
a. Mechanics and Related Employees
b. Stock Clerks
ce. Print Shop Employees
a. As to the emplovees designated as Mechanics and related
Employees, the IBT contends this group embraces the following
classifications:
Inspectors
Lead Mechanics (Line or Shop)
Apprentice
Lead Cleaner
Cleaners
Lead Shop Laborers
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SECTION I—AIRLINE EMPLOYEES 15
Shop Laborers
Shop Janitresses
Lead Ground Communication and Flight
Simulator Technician
Ground Communications and Flight Simulator
Technician
In addition, the IBT contends that the alleged craft or class
of “Mechanics and Related Employees” should include ramp
service employees who perform the following duties on a pre-
ponderance of work basis:
the fucling, oiling and ADI servicing of airplanes, not including the changing and/or
adding of engine vil in conjunction with maintenance interphase or phase checks, oil
tanks or engine changes.
For ready reference, the employees referred to above may be
designated as Fuelers. Such Fuelers are classified by the carrier
as Ramp Service Employees, which is a group totaling 1,630.
Although there are some 637 Ramp Service Employees qualified
to work as Fuelers, the IBT contends for only 180 of this number
on the grounds that they work a preponderance of time in that
capacity.
The IBT does not contend for representation of the balance of
employees classified as Ramp Service Employees.
‘ — position of IAM is described on Page 4 of their brief as
ollows:
No question arose at the hearing concerning the propriety of the Teamsters’ desired
placement of EAL emplovees in jobs covered by the EAL-IAM agreement titled In-
spector, Lead Mechanic, Mechanic, Apprentice, Helper, Lead Ground Communication
and Flight Simulator Technician, Ground Communication and Flight Simulator Tech-
nician, those Cleaners, Shop Laborers, Janitresses and their Leads assigned to clean
shops, hangers or ramps and those Ramp Service Employees and Leads driving and
operating fuel trucks and related equipment utilized for fueling, oiling and ADI
servicing of aircraft within the Airiine Mechanic Craft or Class for voting and certitica-
tion purposes.
However, conflict arose over the Teamsters’ desired exclusions from the Airline
Mechanics Craft or Class and the Clerical, Office, stores, Fleet and Passenger Service
supioyens Craft or Class, us those crafts or classes have been determined in Cases No.
R-144 \ eee Airlines), R-1706 (National Airlines) and R-2783 (Northwest
b. As to the group of Stock Clerks, the IBT observes that
industry practice and numerous NMB certifications for separate
representation of Stock Clerks support their position to treat such
employees as a separate craft or class.
The IAM contests proposed grouping of Stock Clerks as a
separate bargaining unit and points to the fact that the Board,
in Case R-1706, determined such employees to be a part of the
craft or class of Clerical, Office, Stores, Fleet and Passenger
Service Emplovees.
c. The IBT contends that the group designated as Print Shop
Employees, including Lead Pressman, Pressman, Assistant Press-
man, Lead Bindery Clerk, Bindery Clerk, may be appropriately
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A-3
16 DETERMINATION OF CRAFT OR CLASS
considered as a separate craft or class for representation pur-
poses,
Here again the IAM opposes the applicant’s position and argues
that the IBT seeks the establishment of a new craft or class,
Eastern Air Lines, that carrier here involved, contends for
a grouping of employees contrary to either of the contesting
unions. It should be observed that under the Railway Labor Act,
a carrier is not a party in representation disputes, However, in
the Board’s investigation of such matters under Section 2, Ninth,
of the Act, it must rely on the carrier for information needed in
considering the dispute. Accordingly, the views of the carrier
on matters of this nature have been received and taken into
account,
It is the position of EAL that all three of the groups contended
for by the IBT should be combined into one unit for represen-
tation purposes, The position of EAL is based on the collective
bargaining history of these employees on this property and the
alleged interrelation of the work of these employees on Eastern.
The IBT reviews extensively the representation of similar
employees on other airlines and the Board's past determination
of craft or class in support of its contentions in this case.
The IAM does not take an affirmative position on how the
employees should be grouped for purposes of representation but
contents itself with the negative position of opposition on the
basis of past findings of the Board to the groupings proposed
by the IBT. Their position, simply stated, is that the IBT petition
should in all particulars be dismissed.
COLLECTIVE BARGAINING HISTORY
The collective bargaining history of the various groups of
employees involved in this dispute extends back over a period
of 25 years. On December 18, 1937, Case No. R-407, the Board
certified the IAM to represent the craft or class of Airline Mech-
anics on Eastern. At that time there were 221 such employees.
On November 3, 1939, Case R-576, a second certification was
issued for Airline Mechanics, Specialists, their helpers and ap-
prentices. Including the Specialists, the craft or class had grown
by that time to 347 employees.
On May 10, 1946, Case R-1617, a certification was issued in
favor of the IAM to represent Cargo Handlers in addition to
Stock Clerks and Commissary Clerks, which during the interim
had gained IAM representation by voluntary recognition; the
Stock Clerks on December 30, 1939, and Commissary Clerks on
June 1, 1944, At the time of the certification in R-1617, the
Stock Clerks and Commissary Clerks were covered by a separate
labor agreement between IAM and the carrier.
In the certification issued in R-1617, the Board called parti-
cular attention to the fact that it had made an interim finding in
Case R-1471, issued October 4, 1945, regarding representation
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A-4
SECTION I—AIRLINE EMPLOYEES 17
of various employees of Trans Continental & Western Airlines,
Inc. (now known as Trans World Airlines), in which Stock
Clerks, Commissary Clerks and Cargo Handlers were voted as
a single unit, although possibly part of a larger craft or class
of Clerical, Office, Station and Storehouse Employees, not then
in dispute. The Board followed the precedent set in R-1471 in
its certification issued in R-1617, by adding the Cargo Handlers,
through a card check, to the Stores and Commissary personnel
already represented on Eastern by IAM through recognition.
The certification in R-1617 stated specifically that - “This certi-
fication does not establish a precedent or preclude an ultimate
determination in any future dispute as to the proper classifi-
cation of Cargo Handlers for representation purposes.”
On February 11, 1948, a certification was issued, Case R-1976,
to IAM to represent Airline Mechanics (including Shop Laborers
and Janitors). This certification covered some 45 Shop Laborers
and Janitors and was an addendum to the certification in R-576,
issued on November 3, 1939, the basic certification in behalf of
IAM for Mechanics.
The pur,ose of the certification in R-1976 was to round out
the craft or class of Airline Mechanics on Eastern by adding
the Shop Laborers and Janitors working in and around shops
and hangers, to make it conform with the craft or class of Air-
line Mechanics which the Board had found to be the appropriate
grouping in its Findings issued in case R-1447, decided October 1,
1948, on Americar Airlines. Case R-144/7, has been generally
a my as the controlling decision defining the Mechanics’ craft
or class.
On February 24, 1950, in Case R-2247 a certification was issued
for IAM to represent Print Shop Employees.
Over the years since 1937, under IAM representation all. of
these employees graduaily through successive negotiations have
been included under a single collective bargaining agreement.
Where, in 1937 the IAM bargaining group totalled 221, this
group increased to a total of 5,889 as of May 17, 1963. This
number is subdived by groups involved in this case as follows:
Mechanics, Cleaners, Laborers and Simulator Technicians............... 3,940
— ee eee ea mae 306
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Desbedesccesscceconscsessocesesocccssscsosoccoccoeseses 5,889
Section 2, Fourth, of the Railway Labor Act, gives employees
subject to its provisions “the right to organize and bargain
collectively through representatives of their own choosing. The
majority of any craft or class of employees shall have the right
to determine who shal! be the the representative of the craft or
class for the purposes of this Act.”
A-5
18 DETERMINATION OF CRAFT OR CLASS
Section 2, Ninth, requires the National Mediation Board to
investigate disputes which arise among a carrier’s employees
over representation, and to certify the duly authorized represen-
tatives of such employees. In determining the c:ioice of the ma-
jority of employees under this section, the Board is required to
designate who may participate as eligible voters in the event
election is required.
The craft or class of Airline Mechanics is well defined, having
been determined during 1945 as a result of Board’s investigations
of representation disputes on a number of airlines. The principal
findings on this question were issued in C2se R-1447. October 1,
1945, involving employees of American Airlines. Findings applica-
ble to other airlines were also issued by the poard auring Ucvover
1945 and dealt with similar problems of craft or class. As thus
determined and reviewed in Case R-1706 on January 31, 1947,
the craft or class includes:
A. Mechanics who perform maintenance work on aircraft, engine, radio or accessory
ui ment.
ae. Ground service personne! who perform work generally described as follows:
Washing and cleaning, airplane, engine, and accessory parts in overhaul shops. fueling
of aircraft and ground equipment; maintenance of ground and ramp equipment;
maintenance o! buildings, hangars, and related equipment; cleaning and maintaining
the interior and exterior of aircraft; servicing and control of cabin service equipment;
sir conditioning of aircraft; cleaning of airport hangars, buildings, hangar and ramp
equipment.
C. Piant Maintenance personnei—inciuding employees who perform work consisting
of repairs, alterations, additions to and maintenance of bulidings, hangars. and tne
repair, maintenance and operation of related equipment including automati: equip-
ment.
In the years since 1945 this craft or class findings for Airline
Mechanics has not been seriously challenged. On the contrary,
throughout the industry this grouping of employees constitutes
the prevailing pattern for representation in collective bargaining
relationships between carriers and unions.
The main differences as to personne! included in this craft or
class, and the positions involved in the present dispute center
around Ground Service personne! in the determinations referred
to above and personnel in this case designated as Ramp Service
employees.
The work of Ramp Service employees on EAL is defined in
the current labor agreement between the carrier and IAM:
(J) RAMP-SERVICE: The work of Ramp-Service employees shall consist of non-
mechanical duties in connection with the operation and servicing of aircraft while on
the ground. These duties shall be the loading. unloading. pas and securing carg>
in planes, in accordance with Company procedure; the handiing of cargo between
hangars, shops, mail, a'r freight and express rooms or trucks. baggage rooms and field
ticket offices; the handling of loading steps. ground power units. baggage carts. laniing
gear safety pins, wheel checks and other ground handling equipment, fire extinguishing
uipment, fuel trucks and equipment. air conditioners, cargo truck, and the fueling,
iling and ADI servicing of airplanes. not including the changing and ‘or adding of
engine oil in conjunction with maintenance interphase or phase checks, oil tank or
engine
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A-6
SECTION I—AIRLINE EMPLOYEES 19
Employees in this classification may be used to clean airplanes and perform other
non-mechanica! duties in connection with che preparation ul aircrait for tight. How-
ever, at no time wil! this become a permanen: tui lime assignment.
At the outset in considering differences between the parties
here involved as to occupations included in th: established craft
or class of Airline Mechanics, it should be noted that the terms
“Fleet Service,” “Ramp Service,”’ and “Ground Service” em-
ployees are not precisely meaningful designations. What are re-
ferred to as Fleet Service employees on one airline may be called
Ground Service employees on another, On Eastern Air Lines
the Ground Service functions included in the craft or class of
Airline Mechanics are performed by so-called Ramp Service or
Fleet Service employees.
The current agreement between Eastern Air Lines and IAM
lists the various employee groups represented by IAM in Article
4 - Classifications of Employees; as follows:
Mechanical Employees
A. Inspectors
B. Lead Mechanics
C. Mechanics
D. Apprentice
E. Helper
Fleet Service Employees
IL Lead Ramp-Service Man
J. Ramp Service Employees
K. Lead Cleaner
L. Cleaners
Shop Laborers and Shop Janitresses
Lead Shop Laborer
Shop Laborers
Shop Janitresses
Lead Ground Communications and Flight Simulator
Technician
U. Ground Communications and Flight Simulator
Technicians
The description of the work of Ramp Servicemen shown above
includes the duties of loading. unloading, packing and securing
cargo in planes in accordance with company procedure; the
handling of cargo between hangers, shops, mail and express rooms
or trucks, baggage rooms and field ticket offices; handling load-
ing steps, baggage carts and cargo trucks.
Such work is generally recognized as that of “cargo handlers.”
who are included in the craft or class (Case R-1706 et. al.) of
Clerical, Office, Stores, Fleet and Passenger Service Employees,
as personnel who “load and unload baggage and cargo.”
The other duties assigned to Ramp Service Employees and
defined above in the IAM agreement consist of “non-mechanical
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A-7
20 DETERMINATION OF CRAFT OR CLASS
duties in connection with the operation and servicing of aircraft
on the ground.”
Such work has been found by the Board in its determinations
in Cases R-1447 and R-17U6, quoted above, as being “Ground
Service” work, non-mechanical in nature but a part of the work
performed by airline employees in the generally recognized craft
or class of “Airline Mechanics.”
On EAL the following twelve functions ali of which fall natur-
ally in the work classified as “Ground Service,” may be per-
formed either by Ramp Service employees or Mechanics de-
pending on circumstances.'
Gly cling
Placing and Removing Chocks
Sumping Tanks
Placing and Removing Gear Pins
Cleaning Windshields
Fueling Aircraft Engines with Oil
Cleaning Ramps
Fire Watch when Starting Engines
= Signalling when Starting Engines and Moving Air-
craft
Attaching and Removing of Power Pull
Fueling Ground Equipment
Preventive Maintenance on Motorized Ground Equipment
(Changing Oi!, Checking Water, etc.)
The application of the IBT for an election among the craft or
class of “Mechaniis and Related Employees” runs counter to
the well established craft or class of Airline Mechanics as deter-
mined by the Board’s findings in Case R-1447. Although the IBT
includes most of the generally recognized classifications in the
craft or class applied for, it excludes all Ramp Service employees
except so-called Fuelers. There is no separate job title of Fueler
on EAL. Such workers are classified as Ramp Service employees.
The IBT contends for some 180 employees who perform fueling
functions a preponderance of their time. The record shows there
are some 637 * employees qualified to perform the fueling func-
tion and who may do such work on a given day and may also
alternately, do other ramp service work such as handling the
battery carts, contro] blocks, landing gear safety pins, wheel
chocks, or fire extinguishing equipment. The record, however,
is barren of any information on how much of the time of these
637 is spent in the fueling function, or in other types of ground
service functions just mentioned.
The IBT has not advanced any persuasive reasons why the
particular group of 180 Ramp Service employees (fuelers) should
' Board Exhibit No. 4.
* Board Exhibit No. 2°.
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A-8
SECTION I—AIRLINE EMPLOYEES 21
be separated from other Ramp Service employees in considering
those eligible to vote in the craft or class of Airline Mechanics,
and leave out all others performing ground service functions.
Cleaning and janitorial service in and arouna shops, hangars,
and ramp areas has long been considered as work included with-
in the craft or class of Airline Mechanics, and this is recognized
by IBT in the listing of classifications covered by their application.
On the basis of the entire record before it, the Board finds no
reason to depart from the well! established craft or class of ‘‘Air-
line Mechanics.” The Board tinds further, on the basis of investi-
gation heretofore conducted, that a representation dispute ex-
ists among the craft or class of Airline Mechanics of Eastern
Air Lines, and that such dispute should be resolved by a ballot
box election using a list of eligible voters including employees in
that craft or class as heretofore determined in Cases R-1447
and R-1706 et al, and as reviewed herein, The list of eligibie
voters shall include all Fleet Service Employees who perform
ground service and cleaning functions a preponderance of their
time, and shal! exclude Fleet Service employees performing pre-
ponderantly as cargo handlers, as above described. Such employees
are a part of another craft or class, not here in dispute.
The record before the Board indicates that EAL no longer has
employees known as Commissary Clerks, for whom IAM was
recognized as representative by FAL in 1944,
The second group of employees which the IBT seeks to vote
separately are Stock Clerks. They argue that the community of
interest, duties, functions, and nature of the work of Stock and
Stores employees differ sufficiently from that of Mechanics on
the one hand and Office, Clerical and Passenger Service employees,
on the other as to support their position that Stock Clerks should
be recognized and designated as a separate craft or class.
The IAM reviewed previous determinations respecting Stock
Clerks and affirmed its long standing opposition to the inclusion
of Stock Clerks in the Clerical and Office craft or class. By their
own statements on the record before Emergency Board 122,
Stock Clerks on EAL are a separate craft or class,
In 1945, Case R-1447, and in 1947, Case R-1706, Stock Clerks
were determined to be a part of the Clerical and Office craft or
’ class. This was in recognition of the clerical aspects of the job
and also the fact that the duties of Stock Clerks are not mech-
anical in nature. At that time there was considerable diversity
on the various airlines in the manner by which Stock Clerks
were grouped for coilective bargaining. In the years since those
Determinations, this diversity has continued. Moreover, in most
cases this trend is contrary to the early determinations. At the
present time there is considerable variance in the Stock Clerks
collective bargaining pattern. While on some lines they are in-
cluded with the clerical craft or class, on many more they are
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A-9
22 DETERMINATION OF CRAFT OR CLASS
either a separate group or bargain together with the Mechanics.
On EAL, the IAM was voluitarily recognized to represent Stock
Clerks by a separate action on December 30, 1939.
In the vast majority of representation elections for Stock and
Stores personnei conducted by the National Mediation Board they
have been voted as a separate group.’ In view of the lack of
consistent pattern in the collective bargaining relationships for
Stock Clerks, it would appear that there is no strong basis to
disturb a separate grouping for these employees in this case.
Accordingly, a representation election will be conducted among
Stock Clerks.
The third group contended for by the IBT, designated as Print
Shop Employees, is a group of approximately 13 in number. This
group has been represented by the IAM since 1950 under a
certification based on a check of authorizations, This is a pro-
cedure sometimes used by the Board in determining the desires
of employees for representation in situations where employees
secure representation for the first time and there is no contesting
organization.
According to information supplied by the carrier these are not
Print Shop employees in the general commercial sense but in-
stead they operate the usual kind of duplicating machines used in
large offices. None of the employees in this group was trained in
the printers’ craft but instead they were transferred or promoted
to the Print Shop from other jobs on the airline such as Cleaners
and Mail Room. Job titles in the Print Shop include Pressmen and
Bindery Clerks of various grades. The job content of these em-
ployees and their occupational titles suggest they might reason-
ably be considered a part of the Clerical and Office craft or class,
However, no contest for representation of that craft or class is
at issue here. Accordingly, it appears that Print Shop employees
should be considered for a separate group for purposes of a
representation election which is hereby authorized as was done
in 1950 (R-2247) when these employees first secured represen-
tation by the IAM.
CONCLUSION
On the basis of the entire record the Board concludes that
File C-3355 is hereby cocketed as Case No. R-3639 for formal
investigation under the pvovisions of Section 2, Ninth, of the
Railway Labor Act. In such investigation the groupings of em-
ployees for determining representation should be in accordance
with the findings discussed herein and summarized under the
following headings:
1. Airline Mechanics
2. Stock Clerks
3. Print Shop Employees
*IBT Ex hibit No. 7.
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A-10
SECTION I—AIRLINE EMPLOYEES 23
A mediator will be assigned to continue investigation of this
case in accordance with the findings and determinations set forth
herein.
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NATIONAL MEDIATION BOARD
WASHINGTON
#3/ 201364 ipo
In the Matter of
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CASE NO. R-2639
CERTIFICATION
April 15, 1964
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CASTERN AIR LINES, DIK.
1) Airline Mechanics
2) Stock Clerks
3) Print Shop Employees
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The services of the National Mediation Beard were invoked by the
International Brotherhood of Teamsters, Airline Division, to investigate and
deterzine who may represent for the purposes of the Railway Labor Act, es provided
by Section 2, Ninth, thereof, the crafts or classes of (1) Airline Mechanics
(2) Steck Clerks, and'(3) Print Shop Exployees, employees of Eastern Air Lines, Inc.
At the tize of application these empl ,ees vere represented oy tre
International Association of Machinists, AFL-CID.
The case was aseigned to Mediator William H. Pierce, and subsequently
to »ediator Werren S. Lane for investigation.
During the course of the investigation issues were reised es to who
should participate in this dispute. A public hearing was held on the questions
raised by those issues and, on December 5, 1963, findings upon investigation were
issued by the Boerd outlining the grouping of employees for determining of
representation in this case.
March 11, 1964, the International Brotherhood of Teamsters amended their
appiication to exclude the craft or class of Airline Mechanics. A secret balict
election was conducted in the remaining crefts or classes.
April 6, 1964, prior to the count of bellots in this case the Inter.
nationsl Brotherhood of Teexsters withdrew its application to investigate s repre-
sentation dispute azong Print Shop Exployees.
folloving is the resuit of the election among Stock Clerks as recomed
oy ‘ha edtator end sitested by representatives of the contesting organizations
Sa tots 33 Soservers.
A-12
-2- Case i'o. 2-339
International Brothernood of International Fusber of
Tesceters, Cuaurfsurs, rare- Associatisa T=uployees
nousemes ¢. Helpers of America of lachinists Cther E1igi>.=
Stoce Clerks ug 25% 1 3ho
The Mational Mediation Beard further finds that the carrier sod ecployees
in this case are, respectively, a carrier and employees within the ceaning of the
Pailway Labor Act, es amended; that this Board had jurisdiction over the dispute
involved herein; and that the interested parties were given due notice of
Lovestigatian.
CERTIFICATION
Therefore, tte Natiorml Mediation Board certifies that the International
Association of Machinists, AFL-CIO has been duly designated and authorized to
ccntinue to represent, for the purposes of the Fatlwey Labor Act, the craft or
class of Stock Clerks, exployees -f Lastern Air Lices, Inc.
By order of the HATIONAL MEDIATIO? DCAAD.
E. C. Thompson
Feecutive Secretary
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A-13
In the Matter of the Application of: Arrcrarr Mecnuancis FrRa-
TERNAL AssociaTION, ALLEGING REPRESENTATION Disputes Pur-
SUANT TO SecTION 2, NINTH OF THE Rattway Lasor Act, INvoLy-
inc Emptorees or Eastern Arr Lines, Inc., anp Unitep AIR
Lines, Inc., anp SEABOARD Wortp Arrutnes, Inc., By a Com-
MITTEE APPOINTED BY THE NATIONAL MEDIAT:ON BoarD
Case Nos. R-3712 R-3713 R-3714—Decided July 14, 1965
On July 13, 1964 the Aircraft Mechanics Fraternal Association,
pursuant to Section 2, Ninth of the Railway Labor Act, filed a
request for an investigation of a representation dispute involving
the following classifications of employees on Eastern Air Lines,
Inc. which the AMFA maintains should constitute one craft or
class it terms “Aircraft Mechanics:”
The craft or class of Aircraft Mechanics and Radio Electric Mechanics (Aircraft),
including Inspectors, Lead Mechanics (Line and Shops), Mechanics (Line and Shops),
Apprentice Mechanics, Lead Flight Simulator and Flight Simulator Employees.)
This case was docketed as R-3712.
On September 22, 1964 the AMFA filed request for an investi-
gation of a representation dispute involving the following classi-
fication of employees on United Air Lines, Inc.:
The craft or class of Aircraft Mechanics (includes Lead Mechanic, Aircraft Inspector
Lead Flight Simulator Technician. Flight Simulator Technician, Shop Inspector,
Mechanic, Apprentice Mechanic) Radio and Electric Mechanic (Aircraft).
This case docketed as R-3713.
Subsequently, the AMFA made a similar application, docketed
as case No. R-3714, with respect to the following employees of
Seaboard World Airlines, Inc.:
The craft or class of Aircraft Mechanics (includes Lead Mechanics, Mechanics,
Senior Mechanics, Inspectors, Mechanic Helpers, Radio and Electric Mechanics—
Line and Shop).
In its post-hearing brief the AMFA finally stated that:
The employees who belong in the craft ur class which AMPA seeks to represent are
those .. . who “are trained to ind possessed of sufficient skill to do and who in fact do
mechanical work on the aitcrast and its components and who are personaily and divectly
responsible for the airworthy concition of the aircraft ana its components.”
The employees in the classification claimed by the AMFA em-
ployed on Eastern Air Lines and United Air Lines presently are
54
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A-14
SECTION I—AIRLINE EMPLOYEES 55
represented by the International Association of Machinists and on
Seaboard World Airlines by the Transport Workers Union of
America. They are part of the present craft or class of ‘Airline
Mechanics and Related Employees” first established in Case No.
R-1447 (American Airlines) decided October 1, 1945.
In its preliminary investigation of these applications the Board
found that “The Aircraft Mechanics Fraternal Association con-
tends that the craft or class grouping as presently established in
the airline industry by the Board’s decision in Case No. R-1447,
issued October 1945, is inappropriate;” and that “the incumbent
organizations, on the other hand, contend that the employees
covered by these applications constitute only a part of the craft
or class of airline mechanic as determined by the National Medi-
ation Board in Case No. R-1447 which remains appropriate.”’
On November 4, 1964 the National Mediation Board issued an
order pursuant to Section 2, Ninth of the Railway Labor Act
which provides:
Ninth. If any dispute shall arise among a carrier’s employees as to who are the re-
presentatives of such employees designated and authorized in aceordance with the
uirements of this Act, it shall be the duty of the Mediation Board. upon request of
either party to the dispute, tu investigate such dispute and to certify to both parties,
in writing, within thirty days after the receipt of the invocution of its services. the
name or names of the individuals or organizations that have been designated und
authorized to represent the employees involved in the dispute, and certify the sume to
the carrier. Upon receipt of such certification the carrier shall treat with the representa-
tive so certified as the representative of the craft or class for the purpeses of this Act.
In such an investigation. the Mediation Board shall be authorized to tuke a secret
ballot of the empiovees mvyvived, or tu utilize any other appropriate method of as-
certaining the names of their duly des:guated and authorized representatives in such
manner as shail insure the chwice of representatives by the emplovees without inter-
ference, influence, or cvercion exercised by the carrier. In the conduct of any election
for the purposes herein indicated the Buard shali designate who may participate in the
election and establish the rules tu govern the election, of may appoint a committee of
three neutral persons who after hearing shall within ten days designate the empivvees
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 and tu obtain and utilize such in-
formation as may be deemed necessary by it to carry out the purposes and provisions
of this paragraph.”
Pursuant to the Board’s order the undersigned Committee of
three neutral persons was appointed with the responsibility
. .. to conduct a public hearing on these cases to afford all interested parties an op-
portunity to present pertinent data. evidence and argument in support of their respee-
tive position, and, therefore, . . . designate the employees who may participate in any
elections which may be ordered by the National Mediation Board pursuant to its rules
and regulations.*
Thereafter, Eastern Air Lines, Inc.; the International Brother-
hood of Teamsters; the Air Line Employees Association, Inter-
national; Pan American World Airways, Inc.; United Air Lines,
Inc.; the Air Line Dispatchers Association; the Air Transport
&. National Mediation Board Order, Case Nos. R-8712, R-3713, R-3714, November 4, 1964.
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. A-15
56 DETERMINATION OF CRAFT OR CLASS
Association of America; Seaboard World Airlines, Inc.; the Trans-
port Workers Union of America; and the Iaternational Associa-
tlon of Machinists notitied the Hoard of their interest in these
disputes and of their desire to be heard and to participate in any
hearings which might be heid.
The Neutra! Committes held public hearings in New York City
on December 4, 1964, January 7, 8, 13, 14, and 15, March 10, 11,
12, and June 7, 1965, All parties in interest were given an oOp-
portunity to present evidence in the form of exhibits and oral or
written testimony, to cross-examine witnesses, and to present
argument in the form of briefs. The AMFA submitted its brief
on June 18, 1965 and Eastern Air Lines, United Air Lines, the
Internationa! Association of Machinists, Seaboard World Airlines,
the Transport Workers Union, and the Air Transport Association
submitted their briefs on July 2, 1965, After their receipt by the
Committee the record was declared closed as of July 6, 1965.
THE ISSUES
The basic issue before the Committee is to determine whether,
for election purposes, the craft or class of “Aircratt Mechanic”
sought by the AMFA on Eastern Air Lines, United Air Lines,
and Seaboard World Airline is a proper craft or class for pur-
poses of representation as contemplated by the Railway Labor
Act. Further, it is the task of the Committee to determine which
classification of employees in what is now commonly known as
the craft or class of “Airline Mechanics and Related Employees”
should be entitled to vote in any election which the Board may
see fit to order under its rules and regulations.
FINDINGS OF FACT
On the basis of the entire record we find:
1. The employees involved in this dispute are “employees” with-
in the meaning of Section 1, Fifth and Section 2, Ninth of the
Railway Labor Act.
2. The carriers—Eastern Air Lines, United Air Lines, and
Seaboard World Airlines—are carriers as defined in Section 201,
Title II and Section 2, Ninth of the Railway Labor Act.
3. The Internationa! Association of Machinists, herein re-
ferred to as “IAM,” is a labor organization and representative
as defined in Section 1, Sixth and Section 2, Ninth of the Rail-
way Labor Act.
4. The Trarsport Workers Union of America, herein referred
to as “TWU,” is a labor organization and representative as de-
fined in Section 1, Sixth and Section 2, Ninth of the Railway
Labor Act.
5. The Aircraft Mechanics Fraternal Association, herein re-
ferred to as “AMFA,” is a labor organization as defined in Sec-
tion 1, Sixth and Section 2, Ninth of the Railway Labor Act.
A-16
SECTION I—AIRLINE EMPLOYEES 57
6. The National Mediation Board on October 1, 1945 issued its
decision in Case No, R-1447. This decision had the effect of
establishing the craft or class of what has come to be known in
the industry as “Airline Mechanics and Related Employees.” The
decision in R—1447 is the basic determination in the airline indus-
try today with respect to the proper craft or class for represen-
tation purposes among mechanics and related personrel.
7. Through the years the National Mediation Board in its
determination of craft or class matters has consistently given
great weight to the historical relationships established by em-
ployees and the carriers.
8. From its early days the National Mediation Board has re-
fused to create arbitrary craft or class groupings, and impose
them upon the employees and the carriers. Rather, it has sought,
in so far as possible, to determine the proper craft or class on
the basis of the patterns of organizations and collective bar-
gaining relationships which had developed. Likewise, the Board
has generally declined to divide and carve up existing craft or
class groupings and thus to multiply subcrafts and subclasses.
9. The National Mediation Board has on numerous occasions
since 1945 reaffirmed its basic craft or class determinations in
R-1447 with the result that such a craft or class is a fact of life
on ten of the nation’s domestic trunk carriers and on the United
States flag international carriers. (The mechanical employees are
unorganized on Deita Airlines, the eleventh domestic trunk air
carrier.)
10. The petitioner involved herein, the AMFA, takes the posi-
tion that the decision in R-1447 is outdated and that it no
longer provides an adequate basis for establishing the craft or
class within which mechanics who work on the aircraft or its
components should choose a representative.
11. The AMFA states that under current conditions represen-
tation should be selected for a craft or class which it calls Air-
craft Mechanics. The AMFA proposes that craft or class be
comprised of the following classifications on each of the three
carriers involved in this proceeding:
EASTERN AIR LINES
a. Aircraft Inspectors
b. Aircraft Mechanics, line and shop (not including Auto-
motive or Building Maintenance Mechanics), licensed and
unlicensed
c. Apprentice Mechanics
d. Flight Simulator Technicians
e. Leads in these classifications
UNITED AIR LINES
a. Aircraft Inspectors
b. Shop {nspectors
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A-17
58 DETERMINATION OF CRAFT OR CLASS
c. Line, hanger and shop Aircraft Mechanics (not including
Automotive or Building Maintenai.ce Mechanics). licensed
and unlicensed
d. Apprentice Mechanics
e. Flight Simulator Technicians
f. Leads in these classifications
SEABOARD WORLD AIRLINES
a. Aircraft Inspectors
b. Aircraft Mechanics and Senior Mechanics, line and shop
(not including Automotive and Building Maintenance Mechan-
ics) licensed and unlicensed
c. Off-route Station Mechanics
d. Mechanic Helpers, line and shop
e. Leads in these classifications.
12. It appears from the AMFA applications and from the evi-
dence that if the craft or class of Aircraft Mechanic were
established, the following classifications presently covered by the
craft or class of Airline Mechanics and related Employees or
other crafts or classes would be excluded:
EASTERN AIR LINES
a. Building and Maintenance Mechanics
b. Automotive Mechanics
ce. Ground Communications Technicians
d. Cleaners
e. Sho» Laborers
f. Shop Janitresses
g. Print Shop employees
h. Ramp-Service employees
i. Stock Clerks
j. Leads and Seniors in these classifications
UNITED AIR LINES
a. Ground equipment employees
b. Ramp-Servicemen
c. Flight Kitchen employees
d. Utility employees
e. Fuelers
f. Seamstresses
g. Plant Maintenance employees
h. Stores employees
i, Security Guards
j. Crew Car Drivers
k. Ground Communications Technicians
l. Mechanic Helpers
m. Leads in the above ciassifications
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A-18
SECTION I—AIRLINE EMPLOYEES 59
SEABOARD WORLD AIRLINES
a. Cleaners
b. Cabin Servicemen
c. Stock Clerks
d. Cargo Servicemen
e. Leads in the above classifications.
13. There is presently no clasification of “Aircraft Mechanic”
on any of the subject airlines or in the air transport industry.
14. The record shows that on each of the involved airlines the
groupings of employees proposed by the AMFA constitute a
majority in the existing Airline Mechanics and Related Employees
craft or class.
15. The parties opposed to the petition, namely Eastern, United,
Seaboard World, the ATA, the IAM, and the TWU make the
following contentions:
a. The grouping of employees in a craft or class of Aircraft
Mechanics proposed by the AMFA does not conform to the
concept of craft or class embodied in the Railway Labor Act.
Neither does it meet the standards long recognized in craft
or class determination made by the National Mediation Board.
b. The record does not support the contention of the AMFA
that technological changes in the airiine industry have so
changed the duties and functions of airline mechanics as
to justify a repudation of the principles of R-1447 and the
creation of a new grouping of classifications for represcnta-
tion purposes. The carriers contend that the fundemental
skills of the classifications involved have not changed signifi-
cantly since R-1447 was decided in 1945. The organizations,
without subscribing to that contention, join the carriers in
maintaining that skill levels alone have not been deemed
basic in craft or class determinations.
c. The proposed grouping of employees for representation pur-
poses is Unnecessary to protect the interests of these em-
ployees. .hey are not a submerged minority in a sea of un-
skilled classifications,
DISCUSSION
Section 2, Fourth of the Railway Act accords “The majority
of any craft or class of employees the right to determine who
shall be the representative of the craft or class....” The Act does
not define the term “craft or class;” in the opinion of the drafters
of the 1934 amendments those words had a meaning long estab-
lished in labor parlance that was not likely to produce disputes
and if they did, these could be resolved by the machinery erected
in on 2, Ninth.
The National Mediation Board, however, soon was constrained
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A-19
60 DETERMINATION OF CRAFT OR CLASS
to give more precise content to this general phrase. In its First
annual report the Board stated:
_In making rules to govern elections and in designating the employees who may parti-
cipate in such elections, the Board in must cases has been confronted with disuptes as
to whether the employees invuived constitute one craft or class, or whether they are
several distinct crafts for eacn of which sepurate represer tatives are to be chosen by
separate majorities. So far as possible the Buurd has followed the past practice of the
employees in grouping themseives for representation purposes aud of the carriers in
agreements with such representatives.
This approach emerged from a background of a long history
of collective bargaining in the railroad industry predating the
Act, during the course of which employees had voluntarily group-
ed themselves for representation purposes and carriers had made
agreements with the representatives of these groups. Despite the
existence of a history of representation on the railroads, however,
the Board was confronted with requests from particular clas-
sifications for the establishment of separate crafts or classes.
It soon found it necessary to stem a tendency toward the frag-
mentation of previously established groupings. In its First Annual
Report the Board stated that it:
“. . . is impressed that the tendency to divide and further subdivide established and
recognized crafts and classes of empioyvees has arleady gone too far, and threatens to
defeat the main purposes of the Railway Labor Act, namely the making and maintain-
ing of agreements .. . and the avoidance of iavor uisputes.
‘The Board is inclined, therefore, during the coming year to avoid unnecessary
multiplication of subcraits and subclasses. und to maintain, so far as possible, the
customary grouping of employees into crafts and classes as it has been established by
accepted practice over a period uo! years in the making of wage and rule agreements.”’
This policy of primary reliance on “the customary groupings of
the employees into crafts and classes as it has been established
by accepted practice over a period of years...” has remained the
policy of the Board since its establishment.”’.*
The Board has also applied the following principles in making
craft or class determinations: extent and nature of the collective
bargaining arrangements developed by the parties; duties, re-
sponsibilities, skill, training, and experience of the employees
involved and the nature of their work; usual practices of pro-
motion, demotion and seniority observed or developed for the
employees concerned; nature and extent of community of in-
terest among the employees.
In R-1447 the Board restated its reliance on the principle of
historical groupings as its chief guide in craft or class deter-
minations. It stated that:
“... @ ‘craft or class’ in the air transport industry means a well-knit and cohesive
oceupaticnai group which has been developed over a neriod of years in the course of
b. First Annual a: tofthe Vattonal “/ediahon Poard, p. 21
@. Chicago & V. W. Ry. Co., 1 NB Determinations 52 (1937): Seaboard Air Line Ry. Co.. 1 NMB
Determenations 167 (1940); Chicoyo V. 3. & NR. Co... |} NMB Determinations 101 (1953); and Chicago
M., &. P.& P. Ry. Co., 3 N MB Determination: 120 (1955).
A-20
SECTION I—AIRLINE EMPLOYEES 61
general voluntary assuciation of the employees in collective bargaining unite. .. .
Accordingly it becumes necessary Lo examine the uccupauionasl groupings as tbey have
emerged over a period uf yeurs in the airline industry, and the determine whether such
groupings are umilurim to Lhe extent Lut Lucey might vow be termed ‘cralts or clasves’
under the provisions ul the Kauway Lauvor Act.”
In the then young air transport industry the Board found no
clear-cut preexisting pattern of groupings of classifications for
representation and coliective bargaining purposes. Hence it turned
to an examination of the history of organization ar-ong airline
employees in its search for natural and logical groupings of em-
ployees for representaion purposes.
Here it found that “practically without exception airline mech-
anics were the first occupational! craft or class to be organized
and covered by agreements with the air carriers,” but that in
succeeding years other groups, including plant maintenance
force, fleet service personnel and ground service personnel secured
representation and coverage by agreements. In some cases this
coverage was under agreements with mechanics; in others they
were covered by separate agreements.
The Board also observed that on the airlines (in contrast to the
railroads) “no hard and fast jurisdicational divisions have de-
veloped among airline mechanics,” and that the airline mechanic
is “an all-around mechanic capable of performing any kind of
maintenance work required on an aircraft, engine, or accessory
equipment.” Furthermore, the Board found that such employees
as aircraft cleaners, parts washers, plant maintenance mech-
anics and the service groups known variously as “ground service,”
“fleet service,” or “utility” were closely associated with the air-
lines performing specialized tasks which on the smaller carriers
was “in the main performed by the mechanical forces.” On the
basis of the trends and tendencies observed by the Board in the
history of organization among airline employees, it found that:
“The preponderance of evidence seems to indicate that employees of airlines who
perform work such as is described above belong naturally with the mechanical or
maintensnce group, and should be included, with the airline mechanics in one craft or
class for representation purposes, since jurisdictional craft lines are historically absent
among the maintenance of equipment employees of the air carriers.”
In summary, the National Mediation Bcard in R-1447 con-
sidered and specifica!ly rejected the type of alternative presented
in the AMFA petition now before us of setting up mechanics
who work on the airplane or its components, as distinct from
those who work on plant or ground equipment maintenance or
from those who perform ihe semi-skilled or unskilled tasks
related thereto, as a separate craft. It specifically rejected a
narrow c-aft concept es unsuited to the airlines industry and as
foreign to the historical deveiopment of its job structure and its
pattern of seif-organization. Thus as early as September 1945 in
Case No. R-1368, the Board rejected a plea by the IBEW that
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A-21
62 DETERMINATION OF CRAFT OR CLASS
mechanic employees of American Airlines be deemed a separate
craft or class and found them to be part of the craft or class
of airline mechanics.
Instead of narrow craft units, the Board in R-1447 found the
proper unit to be the class of “maintenance of equipment em-
ployees,”” composed of the airline mechanic classification, the
ground service classification, the plant riaintenance personnel
classification and the fleet service personnel classification. Each
of these classifications in turn consisted of a variety of occupations
or sub-specialists varying in scope from airline to airline. The
Board since R-1447 has made craft or class determinations in the
airline industry on this basis with certain modifications not here
relevant.
The AMFA in the petition before us asks that this basic pat-
tern of craft or class determinations be scrapped. It contends that
the craft or class grouping established in the airline industry by
R-1447 is outdated and no longer fills the public need. It claims
that the expansion of the industry and the technological changes
that have taken place in it have created a need for a new approach
to collective bargaining representation. It asks for the establish-
ment of a craft or class consisting of those who:
are trained to and possessed of sufficient skill to do and who in fact do mechanical
work on the aircraft and its components and who are personally and directly respon-
sible for the airworthy condition of the aircraft and its components.
We find that there is no justification for granting the AMFA
petition.
Our reasons are set forth below:
1. There is no histurical basis for the grouping the AMFA seeks.
As pointed out above, a statutory “craft or class of employees”
is that grouping of employees who have historically been as-
sociated with one another in making and administering agree-
ments with carriers. The Board has consistently held that where
there is an established, customary, or historical craft or class
it is without power to subdivide it or create new ones.*
At the present time in the airlines industry there is a historical
grouping of employees for representation purposes. It grew out
of the pattern of self-organization and collective bargaining in
the industry that the Board found to exist at the time of R-1447.
That grouping, established by R-1447, has constituted the his-
torical framework for collective bargaining for mechanics and
related personnel in the air transport industry since that date.
The AMFA now asks that a portion of the classification of this
grouping be carved out and be deemed to constitute a distinct
craft or class. The grouping it seeks has never been viable in the
industry. Functions performed by mechanics on the aircraft
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A-22
SECTION I—-AIRLINE EMPLOYEES 63
have always been regarded as closely related to those performed
by mechanics on ground equipment or in plant maintenance.
The basic nature of the skills required, the aptitudes for the
work, the previous educationai levels required, the periods of
training or apprenticeship are about the same. There may or
may not be differences in the skill requirements of mechanics
who work on aircraft and those who work on ground equipment
or in plant maintenance. But in any event such differences would
not in and of themselves justify the creation of a separate craft
or class for representation purposes.
The related employees in the present craft or class, while of
different skill levels from the mechanics, nonetheless are closely
related to them in that they are engaged in a common function—
the maintenance function on an airline of which the mainten-
ance of airplanes and the maintenance of mobile ground equip-
ment or of fixed facilities are all integral parts.
The grouping the AMFA now seeks to split has become, over
a period of twenty years, the established, recognized or custom-
ary craft or class that constitutes the structure for representa-
tion of mechanical and related employees in the industry. The
Board’s policy, reflecting the intent of the Railway Labor Act,
is to honor such customary groupings in class or craft deter-
minations absent a showing of markedly changed conditions or
other good cause to justify alteration of the established pat-
terns of bargaining.
2. The changes that have occured in the industry since 1945,
have not produced significant changes in duties and functions
so as to justify a change in the existing groupings.
It is not to be inferred that once a craft or class determination
is made it is thereafter immutable and sacrosanct. The Railway
Labor Act does not function in a static industry nor in an un-
changing economy. The airlines industry is constantly under-
going changes in technology or in the organization of work.
Changed conditions could conceivably render obsolete an existing
craft or class grouping for purposes of collective bargaining.
But the changed conditions, in order to constitute justification
for a revision in a craft or class grouping would have to result
in changed duties or functions which so alter the nature of the
classifications as to make their inclusion in the existing grouping
no longer appropriate.
The AMFA has failed to produce credible evidence of a change
in the functions and duties of the classifications it seeks to have
segregated into a separate craft or class that would justify
such a split-off. Its references to the increased speed and changed
design of modern aircraft and engines point, at most, to changes
in the skill requirements of the job of mechanic and even this
point was contested by the carrier representatives. In any case,
we need not pass on it for the existing grouping of classi-
A-23
04 DETERMINATION OF CRAFT OR CLASS
fications into the current craft or class of Airline Mechanics
and Reiated Employees was not made on the basis of an identity
] of skill requirements. Changes in the skill requirements of the
classifications in the present grouping, if they have in fact
occured, may contitute a basis for negotiation of wage differen-
tials in collective bargaining but they do not constitute justi-
] fication for the creation of a separate craft or class.
8. The AMFA petition would place into separate bargaining
units employees who have long had a community of interest.
The AMFA suggested that the employees it seeks to represent
] have a community of interest among themselves, but not with
other employees in the present craft or class, It has emphasized
the matters of “common skill and common responsibility” and
] “of speaking the same language occupationally.” However, the
community of interest concept which must concern us here goes
to the considerations which affect all members of the unit, and
not just those performing particular functions within the mech-
] anic classification. Mechanics engaged in various functions, such
as instrument and radio work, painting, and other line and shop
activities, do not necessarily speak the same language occupa-
tionally, nor are they necessarly bound together by a common
] skill and responsibility.
The significant community of interest relates to the fact that
all members of the present craft or class are engaged in per-
forming the same gencra! function—maintenance of the air-
] line, whether it be maintenance of aircraft, of buildings, or of
equipment. This interest is tied together by seniority rights in
bumping in the case of employment cutbacks, in bidding for
] different jobs at the same occupational level, and in the filling
of promotional opportunities. Spliting the unit could result in
the elimination of these contractual rights.
It goes without saying that both groups have similar interests
] under particular contracts in such matters as overtime rates,
paid holidays, vacations, sick leave, shift starting times, rotating
versus fixed shifts, and insurance programs. This long estab-
lished community of interest could be seriously disturbed if
] there were different unions and different contracts. Instability
of labor relations rather than the stable situation which the
Act seeks to establish could result. On this point the Board said
] as early as 1942:
“The Board views with some concern the tendency to divide established and
well recognized crafts or classes. . . . Once the bars are down. there is no logical
ing place and such a course would ultimately defeat real collective bargainin
as contemplated by the law. On the other hand. stabilization of weil recogniz
crafts orc as they have heen generally established on carriers under the act
by the employccs anc management aiier tong years of negutiaticns will... tend to
stabilize collective bargaining re
®, 8th Annual Kevort of the National M edvation Board. (1942), p. 6
ee ee ee Ce Cee ee ee ee es es
ou on.
iot
A-24
SECTION I—AIRLINE EMPLOYEES 65
4. The AMFA petition if granted would frustrate rather than
effectuate the vusic purposes of the Ruilway Lubor Act, which
imposes the vbliyalion tu muke und maintuin agreements, by
producing jurisdictional disputes for which no remedial mech-
anism is available.
One of the busic purposes of the Railway Labor Act is to stabi-
lize employee-empivoyer relations through collective bargaining.
The achievement of this purpose requires a collective bargain-
ing arrangement which wil! result in minimiziag or settling
disputes which may arise.
A serious possible conseyuence of granting the AMFA petition
is the likely increase in jurisdictionul disputes. While the AMFA
has expressec the view that this danger is exaggerated by the
opponants of the petition, it has nevertheless taken positions,
expressed by its spokesmen in this proceeding, regarding work
assignments and job classifications which could resuit in numer-
ous jurisdictional disputes.
While the Railway Labor Act provides for a variety of dispute-
settling procedures, it does not establish any arrangement for
the settlement of jurisdictional disputes where two or more
unions are involved as representatives of different craft or class
units. The AMFA’s contention to the contrary is ill-informed
and not in accordance with long experience under the Act.
It is common knowledge that work assignment disputes arise
between individuals and between groups. One of the virtues of
the existing craft or class is that it allows considerable flexi-
bility in making work assignments. Furthcrmore, when disputes
arise concerning work assignments they can be resolved by the
dispute-settlemnent provisicns of tie celieccive bargaining agree-
ment. By the terms of Title II of the Railway Labor Act, all
such agreements must provide for the establishment and main-
tenance of System Boards of Adjustment.
Disputes between representatives of different crafts or classes
are not covered by such procedures. The jurisdictional diffi-
culties which may arise vetween different crafts and classes are
well illustrated by the history of the so-called “third party”
issue before the divisions of the National Railroad Adjustment
Board. Over a period of years this issue has frustrated the
settlement of dispute over work assignment and work juris-
diction between different bargaining agents on the railroads.
It is obvious that if the AMFA petition were granted, such
dangers would be greatly magnified to the disadvantave of the
employees, the carriers, and the public.
Having found that the AMFA position as to craft or class
cannct be sustained, we now address ourselves to the matter of
determining which classifications of employees in the craft or
class of Airline Mechanics and Related Employees should be en-
titled to vote in any election which the Board may see fit to order
om |
os ee es oe ee
od
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as
A-25
66 DETERMINATION OF CRAFT OR CLASS
pursuant to its rules and regulations. The IAM and the TWU
(supported by Eastern Air Lines for Ramp-Service employees
and Stock Clerks, and by Seaboard Worid Airlines for Cargo
Service personnel) have aiso requested that the Mechanics and
Related Employees craft or class as now established be expanded
4 include employees performing fleet service and stockroom
uties.
The state of the record does not permit a determination
whether stockroom employees should be added to the craft or
class of Mechanics and Related Employees at Eastern and United,
or whether print shop employees should be added to that craft
or class at Eastern, or whether fleet service should be added to
that craft or class on United Air Lines. Therefore, any requests to
expand the existing craft or class to include any of the above
classifications will be dismissed without prejudice to any future
proceedings.
In the particular circumstances of the cases before us an en-
largement of the craft or class of Mechanics and related Em-
ployees is indicated for Eastern Air Lines and for Seaboard
World Airlines as to include all Ramp-Service employees employed
by Eastern and Ramp Service personne] at Seaboard World.
The question of whether elections should be held following these
proceedings is, under the law, a matter for the Board to decide.
However, we note for the Board’s consideration the IAM con-
tention that ordering an election would not be appropriate in the
event the AMFA’s position as to craft or class is rejected. The
1AM argues that no election should be conducted at Eastern or
United inasmuch as the AMFA cannot, under its own constitution
and by-laws, provide representation for the entire craft or class of
Airline Mechanics and Related Employees. The Committee notes
in passing that the record is clear that up to now the AMFA has
explicitly stated that it does not seek to represent employees in
a unit broader than the one it has urged in these proceedings. '
CONCLUSIONS
1. The request of the Aircraft Mechanics Fraternal Association
for the establishment of a separate craft or class of “Aircraft
Mechanic” is denied.
2. Tle proposal! to expand the existing craft or class of Air-
line Mechanics and Related Employees” to include the stock-
room and fleet service employees of United Air Lines, Inc. are
dismissed without prejudice to any future proceedings.
8. If the Board should order an election, the following class-
ifications of employees on each airline shall be voted together on
one ballot for each airline respectively for the purpose of represen-
{. Testimony of O. V. Delle Fensine, AMF A Exhibit 18, pp. 25-27, and Tr. p. 1612.
A-26
SECTION I—AIRLINE EMPLOYEES 67
tation under Section 2, Ninth of the Railway Labor Act amended:
EASTERN AIR LINES, INC.—CASE NO. R-3712
Inspectors
Lead Mechanics (line or shop)
Mechanics (line or shop)
Apprentice Mechanics
Lead Ramp-Service Men
Ramp-Service employees
Lead Cleaners
Cleaners
Lead Shop Laborers
Shop Laborers
Shop Janitresses
Lead Ground Communication and Flight Simulator Technicians
Ground Communication and Flight Simulator Technicians
UNITED AIR LINES, INC.—CASE NO. R-3713
Lead Mechanics
Aircraft Inspectors
Shop Inspectors
Mechanics
Mechanics’ Helpers
Apprentice Mechanics
Ground Communications Technicians
Utility Employees
Cleaning Women
Lead Fuelers
Fuelers
Seamstresses
Flight Simulator Technicians
Lead Flight Simulator Technicians
SEABOARD WORLD AIRLINES, INC.—CASE NO. R-3714
Inspectors
Lead Mechanics
Senior Mechanics
Mechanics
Off-route Station Mechanics
Mechanic Helpers
Lead Cleaners
Cleaners
Cabin Service Men
Stock Clerks
Lead Stock Clerks
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A-27
68 DETERMINATION OF CRAFT OB CLASS
Cargo Service Men
Lead Cargo Service Men
Signed
Saul W illen
Chairman, Neutral Committee
Ronald W. Haughton
Member, Neutral Committee
Paul N. Guthrie
Member, Neutral Committee
G.P.0.—J-297-417
A-28
NATIONAL MEDIATION BOARD
WASHINGTON, D.C. 20572
In the matter of
CASE NO. R-#270
REPRESENTATION OF EMPLOYEES
CERTIFICATION
of
Jaauary 26, 1972
EASTERN AIR LINES, INC. P
, & af Rh
Flight Dispatchers and Assistants hy p 7s
The services of the National Mediation Board were invoked by the Transport
Vorkers Union of America, AFL-CIO on November 24, 1971, to investigate and
determine who may represent for the purposes of the Railway Labor Act, as
provided by Section 2, Ninth, thereof, the craft or class of Flight Dispatchers and
“sssistants, employees of Eastern Air Lines, Inc.
At tne time application was received, these employees were represested by
the Air Line Dispatchers Association.
The Board assigned Mediator Warren S. Lane to investigate.
FINDINGS
On December 14, 1971, application was received from the Internationa.
£.s30ciation of Machinists and Aerospace Workers, AFL-CIO to intervene in rhis
Cisoute. The investigation disclosed that a dispute existed among the emaloyees
concerned and by direction of the Board, the mediator was instructed to conduct
en e'ection by secret ballot, using an agreed to eligible list to determine th
em.ployees' representation choice.
Toe following is the result of the election as reported by Mediator sdert B.
-i, WAO was assigned to count the ballots in this case and attested thereon 2
Lcty observers,
-_—
ee ee
— =
—y
—
=
ee ee ee ee ee ee ee ee
Number of Employees Voting:
j:t'l Association of
Machinists & Aero-
A-29
=
Transport Workers
Union of America,
Case No. R-4270
Air Line Dis-
patchers
Any Other
Void
a". -*
wurmectr
Organ. or Ballots of
space Workers, AFL-CIO Association Individual Employee:
AFL-CIO Eligible
Flight
Dispatchers &
Assistants 89 5 17 | l 123
The National Mediation Board further finds that the carrier and employees in
rhis case are, respectively, a carrier and employees within the meaning of the
Railway Labor Act, as amended; that this Board has jurisdiction over the dispute
involved herein: and that the interested parties were given due notice of
iavestigation.
NOW, THEREFORE, in accordance with Section 2
Aerospace Workers, AFL-CIO, has been duly designated and authorized to
CERTIFICATION
Ninth, of the Railway
Laoor Act and based upon its investigation pursuant thereto tne National
Mediation Board certifies that the International Association of Machinists and
represent for the purposes of the Railway Labor Act the craft cr clasas of Flight
Disvatchers and Assistants, employees of Eastern Air Lines, Inc., its successors
anc assigas.°
By order of the NATIONAL MEDLATION BOARD.
-_— =
Thomas A, Tracy-
—
-
“
Executive Secretary
A-30
NATIONAL MEDIATION BOARD
WASHINGTON, D.C. 20572
In the matter of :
REPRESENTATION OF EMPLOYEES =: CASE NO. R-4336
of ° CERTIFICATION
EASTERN AIR LINES, INC. : April 25, 1973 -
: wh
Ground School Instructors : id J pe
The services of the National Mediation Board were invoked by the Airline
Division-International Brotherhood of Teamsters, Chauffeures, Warehousemen
and Helpers of America on October 10, 1972, to investigate and determine who may
represent for the purposes of the Railway Labor Act, as provided by Section 2,
Ninth, thereof, Ground School Instructors, employees of Eastern Air Lines, Inc.
At the time application was received, these employees were reor=:sen‘ted
by the Air Line Employees Association.
The Board assigned Mediators Warren S. Lane and Charles H. Callenan
to investigate.
° FINDINGS
The investigation disclosed that a dispute existed armong the employees
concerned and by direction of the Board, the mediator was instructed to conduct
ar election by secret ballot, using an agreed to eligibie list to determine the
employees’ representation choice.
The following is the result of the election as reported by Mediator Caliahan,
who was assigned to count the ballots in this case and attested thereon by the party
observers.
Number of Employees Voting:
Sic Line Employees Int'l Brotherhood Any Other Org. Number of Empioyees
\330ciation, Int'l of Teamsters or Individual Shigible
-
Ground School
Instructors 9 7 29 31
2; ‘vrite in ballots were cast for the International Association of Mactinists and
-sos2ace Workers, AFL-CIO.
The Nationa! Mediation Board further finds that the carrier and employee:
in this case are, respectively, a carrier and employees within the meaning of the
Railway Labor Act, as amended; that this Board has jurisdiction over the dispute
involved herein; and that the interested parties were given due notice of investi-
gation.
CERTIFICATION
NOW, THEREFORE, in accordance with Section 2, Ninth, of the Railway
Labor Act and based upon its investigation pursuant thereto, the National Meciation
Board certifies that the International Association of Machinists and Aerospace
Workers, AFL-CIO, has been duly designated and authorized to represent for the
purposes of the Railway Labor Act, Ground School Instructors, employees of
Eastern Air Lines, Inc., its successors and assigns.
This certification does not establish a precedent or preclude an ultimate
determination in any future representation dispute as to the proper classification
of these employees for representation purposes.
By order of the NATIONAL MEDIATION BOARD.
—_
Tnermas A. Tracy
Executive Secretary
ey I ee ce es De eee ce ee ce ee ee DE ee DO ee BE ee
| | — | a a LL ee ee ee. ee. ee
a eee ee Lied end 96 heed
AFL-CIO,
A-32
IN Thit UNITED STATES DISTRICT COURT /
FOR THE MIDDLE DISTRICT OF NORTH! CAROLINA
WINSTON-SALEM DIVISION 1973 >
c.
ROBERT E. REYNOLDS and
DARIUS MOLES, JR.,
Plaintiffs,
Vv.
CIVIL ACTION FILE
NO. C-179-WS-73
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS,
AFL-CIO, and LOCAL UNION NO. 2444,
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE WORKERS,
Defendants.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This case came before this Court on the defendants’
motion to dismiss with an affidavit attached and on
plaintiffs' motion for a preliminary injunction. Each
party filed memoranda in support of their respective
motions. Since defendants’ motion was directed to the
jurisdiction of this Court to entertain the complaint,
it was considered prior to plaintiffs' motion. The
Court heard oral argument by counsel for each of the
parties.
The Court now makes the following Findings of
Fact and Conclusions of Law.
a —)
=
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A-33
°o @«
FINDINGS OF FACT
1. Plaintiffs are employees of Piedmont Aviation,
Inc. in the "building and maintenance” and "general
aviation" departments or divisions of that company.
2. The defendants are the International Association
of Machinists and Aerospace Workers, AFL-CIO, an
unincorporated labor organization, and its affiliate,
Local Union No. 2444.
3. Following an election conducted by the National
Mediation Board, the defendant International Association
of Machinists and Aerospace Workers, AFL-CIO, on
December 3, 1970, was certified by the National
Mediation Board as having “been duly designated and
authorized to represent, for the purposes of the
Railway Labor Act, the craft or class of Airline
Mechanics and Related Employees, employees of Piedmont
Airlines, its successors and assigns."
4. On January 20, 1971, the International Association
of Machinists and Aerospace Workers served a notice upon
Piedmont Airlines, pursuant to Section 6 of the Railway
Labor Act, of its desire to negotiate a collective
bargaining agreement pursuant to its certification by
the National Mediation Board.
S. During the ensuing conferences between the IAMAW
and Piedmont, disputes developed on a number of issues,
including the employces to be covered, which resulted
in an impasse.
6. On April 26, 1971, Piedmont invoked the mediation
services of the National Mediation Board pursuant to
Section S of the Railway Labor Act and on May 7, 1971,
the bourd docketed the dispute as NMB Case No. A-9054.
_ s
Se eS
a eee ee
A-34
“= F
7. Thereafter, mediation was conducted by Board
Mediator C. A. Peacock. The mediation efforts were
unsuccessful and the IAMAW set a strike date for
October 11, 1971.
8. The Board proffered its further mediation
services, which proffer was accepted by the parties.
9. On October 29, 1971, the IAMAW and Piedmont
signed a Mediation Agreement, effective November 8, 1971,
witnessed by Mediator Peacock, disposing of the dispute.
On November 29, 1971, the Board closed its file on
NMB Case No. A-9034.
10. The agreement covers employees of Piedmont
Airlines "in the inspection, maintenance and overhaul
functions of the airline division in its shops, hangars,
Or locations... ."
1l. The agreement does not cover employees of
Piedmont Aviation, Inc. in its "building and maintenance"
and "general aviation" divisions and therefore does
not cover plaintiffs.
12. Plaintiffs claim to be members of the
class or craft of “Airline Mechanics and Related Employees"
on Piedmont which defendant IAMAW was designated by the
Board to represent.
13. Plaintiffs claim that their exclusion from the
collective bargaining agreement, executed under the auspices
of the Board, constituted an “illegai, invicious and
hostile act by defendants against plaintiffs."
14. Plaintiffs seck injunctive relief and actual
and punitive damages.
15. Defendants filed a motion to dismiss the complaint
contending this Court lacks jurisdiction of this action
~~ -
ara mrarer Fe
= ma. = — ——e a omens = omens — —
—_—
a ee ee ee ee ee ee ee ee ee ee ee ee ee ee eee ee ee |
rs F= -= Fs F= Ss
A-35
because jurisdiction to determine whether plaintiffs are
members of the craft or class of "Airline Mechanics and
Related Employees" on Piedmont Airlines is exclusively
that of the National Mediation Board and plaintiffs
have failed to join indispensable parties as parties
defendant herein, namely, Piedmont Airlines and those
individual employees of Piedmont who are within the
coverage of the agreement.
CONCLUSIONS OF LAW
l. The plaintiffs' claim of violation by defendants
of the latter's duty to fairly represent plaintiffs
can prevail only if it is established that defendants
have a statutory duty to represent plaintiffs.
2. Defendants are required by the provisions of
the Railway Labor Act [45 U.S.C. 151 et seq.] to represent
all employees of Piedmont Airlines who are members
of the craft or class of "Airline Mechanics and Related
Employees".
3. If plaintiffs are members of the craft or class
of "Airline Mechanics and Related Employees" of Piedmont
Airlines, defendants are bound by statute to represent
them. However, if plaintiffs are not members of that
craft or class, defendants owe them no duty of
representation.
4. The primary issue presented by the complaint
is whether plaintiffs are members of the craft or class
of "Airline Mechanics and Related Employees" of Piedmont
Airlines.
5S. Decisions of the United States Supreme Court
and the Court of Appeals for this Circuit have firmly
sa marr - es
ce A a De ee, BO es ce, ice, ces,
=
SS ee ee ee ee ee ee ee ee ee a
A-36
e § «
established that the resolution of such issues are
within the exclusive jurisdiction of the National
Mediation Board. Switchmen's Union of North America
v. National Mediation Board, 320 U.S. 297 (1943);
General Committee, Etc. v. Missouri-Kansas-Texas Railroad
Co., 320 U.S. 323 (1943); General Committee, Etc. v.
Southern Pacific Company, 320 U.S. 338 (1943); Division
No. 14, The Order of Railroad Telegraphers v. Leighty,
298 F.2d 17 (4th Cir., 1962); Rose, et al. v. Brotherhood
of Railway and Steamship Clerks, Etc., 181 F.2d 944
(4th Cir., 1950), cert. den., 340 U.S. 851 (1950). In
- the Rose case, the Court of Appeals for this Circuit
ruled as follows:
"In the light of the decisions of the
Supreme Court, there can be no doubt that the
effect of this statute was to vest in the Mediation
Board exclusive jurisdiction over the certification
of bargaining agents, the determination of
bargaining units and the classification of employees
for the purposes of bargaining. And it is
equally clear that the exercise of discretion
by the board with respect to such matters is not
subject to review by the courts. Switchmen's
Union of North America v. National Mediation Board,
320 U.S. 297, 64 S.Ct. 95, 88 L.Ed. 61; General
Committee etc. v. M-K-T. R. Co., 320 U.S. 323,
64 S.Ct. 146, 88 L.Ed. 76; Brotherhood of Railway
Clerks etc. v. United Transport Service Employees,
320 U.S. 715, 64 S.Ct. 260, 88 L.Ed. 420; Order
of Railway Conductors of America, etc. v. Penn.
R. Co., 323 U.S. 166, 65 S.Ct. 222, 89 L.Ed. 154;
Steele v. L. & N. R. Co., 323 U.S. 192, 205, 65
S.Ct. 226, 89 L.Ed. 173. And see Slocum v. D. L.
6 WW. R. Co., 339 U.S. 239, 760 S.Ct. $77."
In the same opinion, the Court of Appeals relied upon the
following quotation from the United States Supreme Court's
decision in Steele v. L. & N. R. Co., 323 U.S. 192 (1944);
"There is no question here of who is entitled
to represent the craft, or who are members of
it, issues which have been relegated for settle-
ment to the Mediation Board, . .. (fmphasis
by the Court of Appeals.)
— ieee ee es ee
——
a ee ee ee ee ee ee ee ee ee ee ee
_—lU[rxE.hlUceelUh
A-37
6. The primary issue presented by the complaint
is within the exclusive jurisdiction of the National
Mediation Board and this Court, therefore, is without
jurisdiction to entertain the complaint.
7. In light of this Court's decision on the
exclusive jurisdiction of the National Mediation Board
to resolve the primary issue presented by the
complaint, we do not reach the remaining issues
raised by the motion to dismiss or plaintiffs’ motion
for preliminary injunction.
8. Defendants' motion to dismiss, having an
affidavit attached thereto, will be treated as a motion
for summary judgment, pursuant to the provisions of
Rule 12 of the Federal Rules of Civil Procedure, 28
U.S.C., and as such, is granted. An appropriate a
order will be entered accordingly.
United States District Judge
er
Needed ee
a= | | ee ew eB er eee Oe
te
[7 -
; A-38
'
IN Til. UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLAES
WINSTON-SALLM DIVISION
ROBERT E. REYNOLDS and
DARIUS NOLES, JR.,
Plaintiffs,
Vv.
INTERNATIONAL ASSUCTATION O1
MACHINISTS AND AEROSPACE WORKERS,
AFL-CIO, and LOCAL UNION NO. 2444,
INTERNATIONAL ASSOCIATION OF
MACHINISTS AND ALROSPACE WORKERS,
AFL-C1O.
CIVII. ACTION FILE
NO. C-179-WS-73
Defendants.
NN a a a a a et
JUDCMENT AND ORDER DISMISSING COMPLAINT
This cause having cone on before this Court on
the motion of defendants to dismiss, with attached
affidavit, and the motion of plaintiffs for preliminary
injunction, and the Court having read the memoranda
submitted and heurd the arguments of counsel;
It is now ordered, adjudged and decreed that
defendants’ motion is granted and the conplaint be,
and it is hereby, dismissed.
— Wb) pf
United States ijistrict Judge
y ro a Ay 1973
Testo:
9 -
Sitirs Cicr-s
Ys Ubi pie oe
Y
Caro: J-
A-39
UillTED STATES COURT OF APPEALS 2% 2
FOR THE FOURTH CIRCUIT
No. 74-1211
Robert E. Reynolds and
Darius Miles, Jr.,
versus
International Association of
Machinists & Aerospace Workers,
AFL-CIO, and
Local Union No. 2444, International
Association of Machinists & Aerospace
Workers, AFL-CIO,
Appellants,
Appeal from the United States District Court for the
District of North Carolina, at Wnston-Salem. Hiram =.
District Judge.
argued June 7, 1974.
Pat-rs WIETER. eriserrr ana Freryn Cc
Decided June 2
~
and Thomas J.
Larry L. Eubanks (W. Britton Smith, Jr.,
Balch on brief) for Avppellants; Willian G. Mahoney (Hi
1S “iahonev; Rena Drum; Drum, Liner and Redden on brie
sav
—_—
PAY
coe AE coe con EE ce OE ee cee ee ee eee ee ee ee ee ee ee
A-40
PER CURIAM:
After oral argument, we affirm on the opinion of
the district court. Plaintiffs have the right, under
45 U.S.C. § 152, Ninth, to obtain a decision from the
National Mediation Board as to whether they are included
within the bargaining unit for which an employment con-
tract has been negotiated.
|
{ny
’
4
70
{"
ic
(reamed)
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aS = SS
17,068
Labor Rel.tions Cases
A-41
iil 104-74
Strong v. Sheet fetal Workers
6. On December 28, 1972, pli: inti? TWA
and it IAM entere- into working
agreements pur » the RLA embody-
ing the rates of pay, working
conditions of the TWA employees
aforesaid classes or crafts. Fach of sai
agreenicnts provided that the azreement
“shall remain in full force and effect to
and including August 31, 1973, ane there-
after shull be sub: ct to change as pro-
vided in Section 6 of the Labor Act, as
amended”.
7. Pursuant to the said provisions of said
agreements, one or nore of the parties pro-
posed changes in said agreements, and from
no later than June 24, 1974 until the pres-
ent time, a negotiating committee of IAM
District 142 and TWA have been in media-
tion before the National Mediation Board
concerning the disputes arising over said
proposed chanyes, no agreement having yet
been reached.
8. Commencing on or about August
1974 and continuing to date, TWA
ployees represented by IAS! and me
of [AM at TWA’s Technical Servic
ter at the Kansas City Internation;
engaved in concerted slowdowny interrup-
tions and stoppages of work anf other con-
certed interference with TWA's normal
operations.
9. On August 12, 19
sentatives met with th
committee concerning
August 15, 1974, TWA representatives again
brought the aioresA.! actions to the atten-
tion of IAM reprfsentatives at Kansas City
International Affport, ani said IAM repre-
sentatives advfred TW A that such actions
had not be , the IAM, but
that the IAM did net inten
action to end such actvity by the afore-
said members of the iAM.
10. On Aueust 14, 137+, the IAM, through
IAM District 142 and its negotiating com-
mittee, including defendants Kerr and Bay,
ers
Cen-
Airport
. TWA repre-
Union's full-time
Sid probiem, and on
issved a bulletin to the members of the
IAM employed by TWA which encouraged
the aioresaid employees and IAM members
throughout the TWA system to engage in
the activities above-described.
. Services Center in
12. The aforesaid actiyjerfs have already
delays in TWA
jury to TWA.
Conclusions of Law
f TWA, its employees, the IAM, IAM
istrict Lodge 142, [AM Local Lodge 1650
and their ofncers, agents are subject to the
Railway Labor Act, as amended (“RLA”).
2. So long as the dispute over proposed
changes in the TWA-IAM workine agree-
ments date’ December 28, 1972 is in me‘lia-
tion before the National Mediation Board
pursuant to Section 5 of the RLA, and for
30 days aiter termination of such media-
tion services by the National Mediation
Board, the RLA prohibits activities by
IAM members and organizations of the
character descrtbed in paragraphs 8 & 10
of the Findings herein, and the IAM repre-
sentatives of said employees are obligated
under Section 2, First [paragraph] of the
RLA to exert reasonable efforts to end any
such activities by [AM members in viola-
tion of the RLA.
3. Plaintiff is entitled to a preliminary
. nm against future violations of the
RLA, am sting of a notice by
TAM District 142 a 3 locals, otfi-
cers, members of their obligations under
the RLA, as provided in the annexed
Order for Preliminary Injunction.
(7 10,313] John G. Strong et al., Plaintiffs v. Sheet Metal Workers’ International
Association et al., Defendants. Local Union 75, Intervenor. No. C-73-1710.
Doug!as C. Olsen, etc., Plainti€ v. Sheet Metal Workers’ International Association
et al, Defendants. No. C-73-1529.
United States District Court, Northern District of California. February 4, 1974.
Labor-Management Reporting and Disclosure Act
Rights of Union Members—Merger of Local Unions—Effect on Local Membership.
—The merger of San Francisco Bay area loca! anions into one local union, resuiting in
the transfer of members of a particular local into one local union, was not done in retalia-
tion for the local’s rejection of 2 stabilization agreement of the sheet metal industry or
for its entering into another industrial agreement, but, rather, was implemented for the
q 10,223 © 1974, Commerce Clearing House, Inc.
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Strong v. Sheet Metal Workers
17,089
purpose of increased operating efficiency and avoiding competition among the many sheet
metal worker locals in the area, which had an adverse effect upon the development of
the union sector of the sheet metal industry. Apart from the merger itself, there was no
evidence of any action by the international that restricted the members’ right of voting,
assembly and speech guaranteed them as members of a union by federal labor law, and
the merver itself was proper under the union constitution. LMRDA, Section 101.
Back reference.—* 7477.15.
Rights of Union Meintbers—Disciplinary Action—Diminution of Voting Strength
Through Merger.—In light of the safeguards to protect fully the political and the con-
tractual rights of members of a local union who were transferred to other locals following
a merger, and in the absence of proof establishing an intent on the part of the international
and its presilent to punish the locals involved, the mere diminution of voting strength
resulting from the transfers did not constitute “discipline” in violation of the Act. LMRDA,
Section 101(a)(5).
Pack reference.— 7477.
Rights of Union Members—Merger of Locals—Evidence of Bad Faith.—\Wohere the
evidence faile? to establish that an international and its president acted in bad faith or
adverscly to the interests of the international and its membership as a whole in ordering
a merger of locals in a particular area, federal labor law does not permit a court to sub-
Stitute its own view of whar is in the best interests of a labor organization for the decisions
of the officers or bodies of that organization which are charged under the union coa-
stitution with the responsibility for making such decisions. LMRDA, Section 101.
Back reference.—* 7477.47.
Rights of Union Memhers—Internal Anneals Procedures—Stay Pending Appeal.- In
effecting the merger of local unines an! in refusing to grant a ctay ponding appeal under
internal union appeal procedures, an international and its general president did not violate
their contractual duties to a local under the international’s constitution, and therefore, the
local was not entitled to injunctive relief under the Act. The complaining members had
demonstrated neither the irreparable harm nor the probability of success om the merits,
which are prereguisiies to the issuance of a preliminary injunction. LMRDA, Section 102.
Back reference.—* 7479.20.
Findings of Fact, Conclusions of Francisco. In the Lecal 75 case, similar
Law and Order relief was sovght tu resirain action of the
= ~~. “CR; Internationai transferring members of an-
een Nae ee. > Sor — other affiliate, Local 75, into Locals 104 of
and No. C-73-1700-CBR. referred to here- San Francisco and 216 of Oakland on the
‘ following basis:
(a) The members of Local 75 who
reside in Mendocino, Lake, Sonoma, and
Marin Counties to be transferred into
Local 104, and
(b) The members of Local 75 who
reside in Napa and Solano Counties to be
after as the “Local 75 case,” were con-
solidated for hearing on the issue of an
Order to Show Cause why a preliminary
injunction should not issue.’ [In tie Local
497 case a preliminary iniunction wes
sought to restrain an international labor
union, Sheet Metal Workers’ International
Association, AFL-CIO, referred to here- transferred into Local 216.
after as the “International,” from merging This action has been brought under vari-
its affiliate Local 497 (with territonal ous sections of the Labor-Management Re-
jurisdiction over Del Norte, Humboldt, and
Trinity Counties) into Local 104 of San
porting and Disclosure Act of 1959 (Lan-
drum-Griffin Act), 29 U. S. C. § 401 et seq.,
‘By stipulation of the parties to the Local 75
action. dated September 25, 1973, a temporary
restraining order was issued on that date to
enjoin further dissolution of Locwu 75 and trans-
fer of its men:bers pending the Court's devision
on plaintiffs’ motion for a pretiminary injurction
By stipulation cnd order dated January 21, 1974,
Labor Law Reports
the heartag on the preliminary injunction con-
Stituted the trial on tne merits in both cases.
As a result of this stipulation and order piain-
tiffs have e@fevtively waived their claim for
money durnages since no evidence of such dam-
age was presented at the hearing.
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Strong v. Sheet Metal U'orkers
specifically the sections dealing with equal
rights and free speech [§$4l1(a)(1) and
(2)], due process in disciplinary proceed-
ings (§ 411(s)(5)], and the fiduciary obli-
gations owed to union members by their
officers [$501]. In addition, there are al-
legations of the violation of the duty of
fair representation enforceable under § 301
of the Labor-Management Relations Act of
1947 (Taft-Hartley Act), 29 U. S. C. § 185,
and of violations of the union constitution
enforceable by Local 75 under 29 U. S. C.
§ 185.
The cases came for hearing on De-
cember 3, 4, 5 and 6, 1973. Thereafter the
parties filed proposed 4ndings of fact and
conclusions of law and plaintiffs filed a
post-heanng brief. Ora! arcument was heard
on January. 3, 1974. After hearing all of
the witnesses and examining all of the evi-
dence, the Court makes the following
Findings of Fact, Conclusions of Law, and
Order.
Findings of Fact
i. Piainuifis in the two actions which
have been consolidated nerein are members,
respectively, of Local Unions 73 and 497
of the Internatioral. They are suing in-
dividually ant on behalf of their fellow
members as a class.
2. The members of Local 75 number ap-
proximately 470, and it is impracticable to
bring 2l!l of them before the Court. There
are questions of law and fact presented
here which are common to the entire class
of persons who are members ci Loca! 75.
The claims of plaintitis herein are typical
of the claims of this cluss, and the plainti:ts
will fairly and adequately protect the in-
terests of the class.
3. In the Local 75 action the defenciants
have acted on grounds generally applicable
to the class, thereby making final! injunctive
and declaratory relief appropriate with re-
spect to the class as a whole.
4. In the Local 75 action the class con-
sists of the members of Local 75 of the
International as of August 29, 1973.
5. The members of Local 497 number
approximately 60, and it is impracticable to
bring ail of them before the Court. There
are questions of law and fact presented
here which are common to the entire class
of persons who are members of Local 497.
The claims of plaintiffs herein are typical
ot the claims of this class, and the plain-
tiffs will fairly and adequatcly protect the
interests of the class.
{ 10,213
6. In the Local 497 action the defendants
have acted on grounds generally applicable
to the class, thereby making final injunctive
and declaratory relief appropriate with re-
spect to the class as a whole.
7. In the Local 497 action the class cor-
sists of the members of Local 497 of the
International as of August 29, 1973.
8. During the course of the procecdings,
Local 75 of the International entered as an
Interveror.
9. Locals 497 and 75 are local unions
chartered by and afiiliated with the Inter-
national.
10. Defendants are the International;
Edward J. Carlough, the General President
of the International; and Charles Artman,
the International Representative having re-
sponsibility over Locals 75 and 497.
11. Defendant International is an inter-
national labor organization with general of-
fices in Washinzton, D. C., with which are
affiliated more than 4™ subordinate bodies
such as local unions, district councils, and
railroad district councils threuchout the
United States and Canada. International
issues charters to new local unions and
other subordinate bodies from time to time
and it also revokes charters, merges or
amalcamates local unions, transfers mem-
bers from one local union to another, and
chances the territorial jurisdiction or the
classification-of-work jurisdiction of its vari-
ous loca! unions. In such activities and all
other matters, the International, its afnliated
local unions and other subordinate bexties,
and the membership are governed by a
written documeat known as the Constitu-
tion and Ritual of the International, which
prescribes atl of tue reciprocal riehis and
duties of the parties ani which may, fairly
be described as a contract or compact by
and between them.
12. Defendant Edward J. Carlough, the
International's General President, is its
chief executive officer. Carlough has heen
Genera’! Pres'dent since October 1, 1970.
During the ten years prior to being Gen-
era! President, Cariouch was the Interna-
tional’s Director of Orgarization.
13. Deiendant Charles Artmar is an In-
ternational Representative of the Interma-
tional. He has served in such capacity since
1934. An International Representative is
appointed by the General President with
the consent of the General Executive Council,
and is a full-time, salaried position. Art-
maa services the eutire state of Califurnia
in this capacity.
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Labor Cases—Cited 75 LC
17,091
Strony v Sheet Metal Workers
[Division of Local]
14. The acts comp!sined of arose cut of
the decision of the General Presi‘esnt io
dwile Local 75, covery much of C.li-
fornia north of San Franriscu, ant to transfer
these members currently residine in: Mendo-
cino, Lake, Sonoma, and Marin Counties to
Local 104 in San Francisco ard tu transfer
those members currently residing im «pa
and Selano Counties to Local 216 in Ala-
meda County; and, in ad-lition, to merge
Local 497, whose territorial jurisdiction
covers Del Norte, Humboldt and Trinity
Counties, into Local 104 in San Francisco.
15. Carlouch explained this decisior in a
letter to the members affected dated Au-
gust 29, 1973. He cave as authority for his
action Article Three. Section 2(¢) of the
Constitution and Ritual of the Inter.ational
which prosides in applicable part:
“The General President shall have full
authority * * * to amalgamate two or
more local unions or district councils
when it is advisable or necessary in the
test ititeeest- of ibis Asseiauon and the
mesibers thers oi.”
16. The letter of August 29, 1973, enumer-
ates six factors evaluated in reaching the
decision to amalzamate the local umions
along the lines specitiel: (1) Local 497
was unable te police its jurisdiction effec-
tively despite its high dues structure; (2)
increase'l operating eficiency along with
lower adiministra:ive costs would result from
the amaleamation of Locals 447 and 75;
(3) the new geographic distribution of the
transferred areas of Local 75 would enable
the surviving Locals 104 and 216 to cover
the expanded area with relative facility;
(4) the elimination of various types of
inter-local travel barriers would encourage
Bay Acca sheet metal contractors to bid on
jobs over a broader area and would enable
union contractors to compete more effec-
tively with rival trades and nonunion em-
ployers, thus increasing work opportunities
for the membership as a whole; (5) 2 better
competitive basis, in juris:lictional terms,
would result for sheet metal workers and
coutractors in relation to other rival trades
and crafts in the Northern California area;
and (6) the fact that Northern California
was treated as a single ccomomic area by
federal wage and price administrators with
uniform wage structures formulated for the
entire area.
17. At trial Carlouch further explained
that his decision was bised primarily on
the following concerrs:
(a) The existence of too much compe-
tition among the Northern Califormia locals ;
(b) The migration of sheet metal con-
tractors down the Peninsula and away
from San Francisco; and
.c) The desirability of the SASMI plan,
which depended for its implementation ou
a freer flow of members in the Northern
California area and which, therefore, was
being inhibited by the then current juris-
dictional structure of the Northern Cali-
fornia locals.
18. The evidence in«dicates that from the
time Carlough became Gencral President
an! even prior thereto he had been con-
sidering the problems of sheet metal workers
local unions in the Northern California area.
The essential dificulty in Northern Cali-
fornia, according to Carlouch, is that there
are too many local unions in the area and,
thus, too much competition among them
far more money in terms si hourly wace
rates, pemsioss, and other frage benefis,
ete. There are five local unions competing
in the Pay Area alone: Local 104 (San
Francisco County), Local 216 (Alameda
and Contra Costa Counties), Local 272
(San Mateo County), Local 2 (Monterey, -
San Benito, Santa Clara, and Santa Cruz
Counties), and Local 75 (Lake, Marin,
Mendocino, Napa, Solano, and Sonoma
Counties). Whenever certain canditions were
obtained in one area, the representatives of
the local unions in contizuous areas attempted
to surpass them. This, at least in Carlouch’s
opinion, has had an adverse effect upon the
development of the union sector of the
sheet metal industry. In addition, the move-
ment of men in the Northern California
area has been restricted unduly under the
International's so-called “twoman ruie”’
due to the fact that there are too many
local unions in this region. This has con-
tributed to the loss of certain kinds of work
by union contractors and will continue to
do so if the conditions contiaue. Many
local unions in Northern California in com-
parable building trades work such as iron-
workers, asbestos workers, and operating
engineers, have territorial jurisdiction over
substantially more of the Northern Cali-
fornia counties than the sheet metal workers’
local unions which means that there are
relatively few restrictions on the move-
2 Under th» “two-man rule” a contractor from
outside the jurisdiction of a particular local
union can bring into that jurisdiction no more
Labor Law Reovorts
than tuo men from his home jurisdiction. rle
must hire the rest of his crew {rom the local
within whose jurisdiction the job is located.
17,022
Labor Relations Cases
A-45
111 104-74
Strong v. Sheet Metal Workers
ment of the members of the other trades
throughout the Bay Area. Carlough’s testi-
mony about unfavorable competitive con-
ditiors in the union sector of the sheet
metal industry was indenerdent!; corroborated
by A. Bruce McKenzie, executive director
of the Sheet Metal Contractor. Association
in San Francisco, Wade Adams, member of
the board of directors of the Sheet Meta.
Contractors Association of San Mateo, ard
Richardt Ward, executive director of the
Sheet Metal Contractors Association of
San Mateo. A letter from Richard Ward,
dated September 7, 1972, indicated that a
number of Bay Area sheet metal contractors
intended to approach (General President
Carlough to seek the merger of all five Pav
Area local unions into one local union, as a
suggested solution to the problem.
[Shrinkage in Loce!’s Membership]
19% Another developrunt which Carlough
deemed! serious was the shrinkave in the
size of the membership of Local li4 of San
Piatra. This eviientiy was attadbutabie
tu uy lainen vw >HUps ati work from San
Francisco to contiguous areas. Carlough
State! that the San Francisco local union
must be maintained as the dominant-sized
union in the Bay Area and that the logical
way to achieve this objective was through
a program of mergers.
20. The International, in conjunction with
various emplo ers, has established a trustee
plan to stabilize the earrings of sheet metal
workers by assuring covered employees a
minimum number of hours of pay during
semi-annual periods. The plan which is
entitled Stabilization Agreement of the Sheet
Metal Industry, and is commonly known
as SASMI, was not completed in final form
and formally adopted until May 21, 1973.
General President Carlougi has personally
endorsed SASMI and has encouraged its
adoption by local unions and employers
throughout the country. Cariouch spoke of
the SASMI concept to various emplover
and union groups as early as March of 1971.
long before the plan was completed in final
form.
21. In the winter and spring of 1972,
Carlough had a series of ciiscussions of the
SASMI concept with A. Bruce McKenzie,
exccutive director of the Sheet Metal Con-
tractors Association of Sar Francisco, and
Charles Andrews, President of that Asso-
ciation. Carlough, who at that time was
alrcady considering various merger poosi-
bilities in the Bay Area, felt thar McKenzie
q 16,313
and Andrews, being interested in obtaining
relief from the strictures on the free flow
of manpower and diversity of wage rates
and working conditions throughout the Bay
Area, might be induced to support the
SASM1 concept in exchange for the contem-
plated mergers which would probably re-
sult in the dez.-ed relief Thus, an agreement
was regotiated on August 1, 19°2, between
Loal 144 anc the San Francixo Contractors
Association, accompanied bv a letter of
understanding between Carlough and Andrews
which provide.l that if certain types of
relief could be obtained with respect to
working conditioas and travel restrictions
in Locals 194, 272, 309 and 216, and if a
com.:.on .nJdustrial agreement could he nezo-
uated to apply throughout the jurisdiction
of Locals 75, 104, 216 and 272 and 39, the
San Francisco Sheet Metal Contractors would
participate in the SASMI program.
22. Both the agreement and the letter
of understanding of August 1, 1972, were
revised aml renegotiated by the original
signatory parties an “fay 21, 1073. purcuane
to recammen:'ations be coursel for the In-
ternationa! and also to conform to the final
concept for the SASMI program, which
had been substantially revised since August
1, 1972. The conditions described in the
letter of understanding have not been met
as of the date of the hearing hereia, and the
sheet meta! contractors aftilinted with the
Sheet Metal Contractors Asscciation of San
Francisco are not making contributions to
the SASMI trust fund or participating in
the SASMI program.
23. During 1973 the SASMI plan has
been repucliated by a substantial number of
locals throughout the United States, includ-
ing Local 73. Most of the !ocal unions in
the State of California which have nego-
tiated agreements during 1973 have re-
jected it. Carlough told Kelley Barber, the
business manager of Local 73, that he was
disappointed to learn that Local 75 had
not adopted SASMI and stated that he felt
that with proper leadership, Local 75 would
have endorsed it.
[Merger of Unions]
2+. Between 1966 and 1972 a considerable
number of loca! unions throughout the United
States and Canada have been merged or
amalgamated with other local unions, and
during the same period of time many changes
in ihe territoria: jurisdiction of lucai unions
have been directed, some of which repre-
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Strong v. Sheet Metal Workers
sented accretions and others diminutions to
the affected local unions.
25. Plaintiffs did not establish by a pre-
ponderance of the evidence that Carlough
ordered the a:malgamation for the purpose
of punishing Local 75 or its members for
their rejection of the SASMI plan or for
the purpose of punishing the members of
Local 497.
26. Plaintiffs did not establish by a pre-
ponderance of the evidence that, in ordering
and effecting the amalgamation, either Car-
lough or Artman acted in bad faith or in
conflict with or adversely to the interests
of the International or of its members
collectively.
27. In light of the conditions existing in
Northern California in May, 1972, General
President Carlouch asked International Rep-
resentative Artman tor his recommendations
with respect to mergers involving the various
local unions in Northern California. Art-
man prepared a study which recommended
the mercers of: (1) Toacals 104. 77? and
A, (27) Loacats 216. 283 anil 495, and (3)
Locais 75 and 497. Artman also recom-
mended the creation of a Bay Area “Indus-
dustrial Local” to have jurisdiction over
industrial sheet metal work in the entire
Ray Area. He recommended against the
merger of Local 75 into Local 104 or
Local 216.
28. Carlough then began working with
the oficials and members involved for the
merger of Locals 104, 272, and 309, as
recommended, but, because of opposition
from the locals and from the employer
associations concerned he was eventually
forced to albanaon these efforts.
29. Carlowgh then turaed his attention to
Locals 75 and 497 arsl decided, contrary
to the earlier recommendaicion of Artman,
to transfer their members into Locals 104
and 216. He restucdied and rejected Art-
man’s recommenlations as to a merger
between Locals 75 and 497.
30. In order to avou the problers he
had encountered earlier in his attempt to
merge Locals 104, 272 and 309, Carlough
decided not to disclose his intentions to
the officials or members of Locals 75
and 497.
Ji. Artman, together with counsel for
the International made a feasibility study
of the merger prospects for Locals 497
and 75 which was submitted in the form
of a written report in July of 1973. This
report, with -minor changes, served as the
Labor Law Reports
basis for Carlough’s merger directive of
August 29, 1973.
2. Carlough thereupon issued his letter
of August 29, 1973, which directed that
the necessary details of the mergers were
to be completed no later than October 1,
1973. Artman told the members of Local
75, however, that the mergers were effective
as of August 29, 1973. Artman then can-
cele the regular mecting of the member-
ship, scheduling in its place two purely
informative meetings; and, when presented
with a petition by the membership for a
special meeting, as permitted under the
Constitution, he refused to allow such a
mecting to be held.
33. With respect to the merger of Local
497 (Trinity, Humboltt and Del Norte
Counties), every witness who testified at
the hearing herein conceded that a merger
was not only desirable but necessary inas-
much as Local 497 was unable to sustain
itself despite hich dues structure. Interna-
tional Representative Artman testified that
the members ot Local 497, with the possible
exception of one or two individuals, have
already been transferred into Local 1,
so that this merger is in effect a fait
accompli.
34. The merger or transfer of members
in the Local 75 case is only partially com-
pleted because of the issuance by this
Court upon stipulation of the parties of a
temporary restraining order which by con-
sent of counsel for defendants has been
continued until the court enters its order
herein on plaintiffs’ motion for a preliminary
injunction.
35. The directive of August 29, 1973,
enlarges the territorial jurisdiction of Local
104 of San Francisco northward in a narrow
corridor co the sou.hecn border of Oregon,
em racing tie coun:ies of San Francisco,
Marin, Sonoma. Lake, Mendocino, Trinity,
Humboldt, and Del Norte, and enlarges
the territorial jurisdiction of Local 216 of
Oakland to include Alameda, Contra Costa,
Napa, and Solano Counties. Many other
building trades local unions have compar-
able or even more extensive territorial ju-
ris liction.
{Effect of Merger]
36. This merger, just as any other, has
the natural effect of diluting the rights
and powers of individual members of the
locals involved.
37. Pursuant to President Carlough’s di-
rective of August 29, 1973, the members
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312 104-74
Labor Cases—Cited 75 LC
17,095
Strong v. Sheet Metal ii orkers
union. In the event the funds and prop-
erty are not surrendere! tu a local union
by the General Seerctary-Treasurer as
provided in this Section, they sha!! be-
come the property of this Association.”
44 Appeals have been filed with the
General Executive Council, which has tne
constitutional authority to modify or re-
verse and sect aside the action of the
General President sliould it decicie that said
mergers or either of them are not in the
best interests of the International and the
members thereof. Should the General Pre-i-
dent’s decision be reversed, the charter,
seal, books, records, papers, funds and
all other personal property of both or
either of said loca! unions would be returned
by the International's General Secretary-
Treasurer, pursuant to the provisions cf
Article Tien (10), Section 10, of the Inter-
national Constitution.
(Waiver of Requirement]
45. Plaintiffs have requested waiver of
the requiremert under Article Nineteer:
(19), Section 3{a) of the International Con-
stitution of compliance with the mere-r
decision nendine the appeal. Pursuant to
Article Nineteen (19), Sectron 3(b), General
Seeretary-Treasurer Turner polled the me:n-
bers of the General Executive Council! to
ascertain whether they favored waiver of
such requirement. The members of the
General Executive Council nouned te Gen-
eral Secretary-Treasurer that they did not
wish to grant such waiver.
46. In the event that plaintiffs are suc-
cesstul on their internal ap;ecls, the Inter-
national could re-establish the locals, aad
so long as the International adheres to
the above safeguar:! provisions involving
the boo!:s, records, funds, etc.. of the locals
during the pendency of the appeal, plaintitis
will not suffer irreparable harm because
of the consummation of the merger.
47. Plaintiffs have not been denied their
right of internal appeal under the [nterna-
tional Constitu..n nor have defendarts
frustrated that -isht.
Conclusiors of Lar
1. Jurisdiction and venus: are proper und r
29 U. S. C. §§ 412, S01, anc 183.
2. Both the Local 75 action and the
Local 497 action are properly maintained a:
class actions under Rule 23(b)(2), Federal
Rules of Civil Procedure.
3. The safeguards enacted in the Lar-
drum-Grifin Act were meant to secur:
Labor Law Reperts
individual membership rights, not to guar-
antee the perpetuity ci a given local union.
4. In taking the actions complained of
here, defendants did not deny to piairtilfs
their right to participate equally in union
aftairs and, therefore, did not violate 29
LC. S.C. §4llf(2)(1).
3. Defendants’ actions did not deny to
plaintiffs their right of free speech and
assembly and, therefore, did not violate
29U.S8. C. 8411 (a)(2).
6. In light of the safeguards provided to
protect fuily the political and the contrac-
tual rights of the transferred members and
in the absence of proof establishing an in-
tent on the part of defendants to punish
the locals im question, the mere diminution
of voting strength resulting from the trans-
fers does not constitute “discipline” in vio-
lation of 29 U. S.C. § 4i1(a)(5).
7. Defendants have not violated the fidu-
ciary duties imposed upon them by 29
U.S. C. $501.
8 Defendarts have not violated the duty
of fair representation enforceadle under
2v U.S. C. § 185 (§ Jui of the Tait-Fiartiey
Act).
9. Where the evidence fails to establish
that defendants acted in bad faith or ad-
versely to the interests of the International
and its membership as a whole, federal
labor law doves not permit a court to sub-
stitute its own view of what is in the best
interests of a labor organization for the
decisions of the officers or bodies of that
organization which are charged under the
union constitution with the responsibility
for making sucli: decisions.
10. Carlough’s action in ordering the
amalgamation in question was proper under
the terms of the Constitution and Ritual of
the International.
11. The Constitution of the International
does not require the International or its
General President to disclose merzer or
amalgamation plans to the locals affected
prior to the institution of such plans.
12. In effecting the ama'eamation and
in refusing to grant a stay pending internal
appeal, defirdants have not violated the
contractual Juires to piaintif? Local 75 which
arise under the international Constitution,
and therefore, plaintiff Local 75 is not en-
titled to relief under 29 U.S. C. § 185.
13. Plaintiffs have demonstrated neither
the irreparable harm nor the probability of
success on the merits which are prerequi-
q 10,313
17,096
Labor Relations Cases
A-48
111 104-74
Retail, bi holesale & Departeent Store Union v. Creme
Cone Mfg. Co., Big Lrwm, Ine
sites to the issuance of a preliminary
injunction.
Thereior:, on the basis of the foregoing
Findings of Fact and Conclusions of law,
It Is Hereby Ordered that plaintiffs’ mo
tion for a preliminary injunction is demed.
It Is Hereby Curtner Orcere !, Adiudyed
and Deereed that the comploints of plain-
tiffs are dismissed, and that judgment be
entered in favor of defendants.
It Is Hereby Further Ordered, Adjudged
and Decreed that the parties are to bear
their respective costs.
It Is Hereby Further Ordered, Adjudged
and Decreed that defendants sulmmit a form
vf judement consistent with this order.
[4 10,3
til v. The Crem
Ohio Court of Cont
Arbitration Awards—Modificeti
tractual Bargaining Unit.—-An arbitraro
part of a barvaining unit was vacetel, suc
that occupations in the baryaining unit, as the pro
from the unit and the contract proiubited the arbitrator
contract. Ohie Revised Code, Section 2711.10.
Back references. —" 3280.24 and Oli § 43,555.
ms oe a oF . oe - oe 2 °*
David Clay aian, Culumivus, Cinu, tot Claim. |
Joseph M. Millious and Timothy J. Battaglia, Columbus, Ohio, for Defe
Decision and Entry
Frowers, J.: The within case comes on
for determination of the separate motions
for summary judgment filed by both parties
upon the pleadings, exhibits an’ meznoranda
of counsel. The complaint secks the vaca-
tion of an arbitrator's award, pursuant to
Section 2711.16, Ohio Revised Cade, on the
basis that the arbitrator exceeded his author:
in ruiing that the occupation of a progr
was not a barcaining unit occupation ¢
to the specific lintatiuns of the Coll
gaining Agreement, Exhibit 1.
sideration thereof, the Court §
is nO genuine issue as to
with respect to plainti
Vacate the Arbitrat
plainti€ is entitled
of law on its Moti
[Modi
ds that there
fy material fact
Ss .\ppiication to
Award, and that
judgment as a matter
for Summary Judgment.
cation of Contract]
Local 379, ketail, Wheiesale, Department Store Unioa, AFL-CIO, Plain-
“one M:nufacturing Company, Division of Pig Drum, Inc., Defendant.
n Pleas, Franklin County. No. 73C V-06-2061. February 25, 1974.
its Under Unien Contracts
of Contract—-Exciusion of Programmer from Con-
award declarins that a programmer was not
¢ bargaining contract specifically stated
mer Was, were not to be removed
modiiying the terms of the
cation of the collectiv rgaining agreement
rather than an ¢ pretation thereof, con-
trary to its spegefic limitations.
Article
cup2tion presently in the bargaining
git will not be moved to another Divi-
ion or Departrnent within the Company,
outside of the Bargaining Unit.”
Article VI, Section 2 contains the limi-
tation that the arbitrator shail not have the
power to add to or subtract from or modify
any of the term, of said agreement. This
latter limitation is consistent with both
federal and state cise law, cited by plaintiff.
Economic justifications do not warrant de-
parture from the specific limitations of the
agreement.
“Section 3 provides as follows:
Accordingly, the motion of plaintiff for
summary judgment is well taken and is
sustained. Motion of defendant for sum-
The history of the position under con-
sideration and necessity for economic de-
velopment, as enunciated by the arbitrator,
certainly justifies his conclusion. However,
his determination does constitute a modifi-
udgment is not well taken and is
overruled.
It is, therefore, ordered, adju@ked and
decreed that final judgrient be rendered in
favor of plaintiff at the costs of defendant.
q 10,314
© 1974, Comrrerce Clearing House, Inc.
A-49
UNITED Si1ATES OF AMERICA
BEL ORE THE NATIONAL MEDIATION BOARD
‘.O THE NATIONAL MEDIATION BOARD:
APPLICATION TO INVOKE SERVICES OF THE
NATIONAL MEDIATION BOARD
Come now applicants and in connection with this Application
show the Board the following facts:
l.
Your applicanis are Matthew Jasinski, Max R. Skelton,
Charles K, Johuson, J. Sicwart Harrison, Edward E, Biowik, J. W. Roach, Don
Goudnart, Phillip Seaulieu, and Joon &. Thomas, all of whom are ai: )ine
mechanics employed by Eastern Airlines, inc, Applicants bring this
Application for themselves individually and for all of the other airline
mechanics and other releted employees in their existing collective
hargaining craft and unit ‘nder the Railway Labor Act (herein, the Act),
2s cmended.
Be
Apyli. ats, along with their teliow employees in their said
eullective bascaining craft ond unit are empivyees within the meining of
iz “ct.
°
ys
“astern Airlines is an 2irline carrier within the meaning
oe) a
}
1
—
”
~a~a ~- - - - - | | |
A-50
4.
Applicants are presently represented for collective
bargaining purposes under the Act by International Association of
Machinists and Aerospace Workers Union (herein, 1.A.M.), which is a
labor organizatioa within the meaning of the Act.
5.
Applicants are employed as airline mechanics in the
collective bargaining unit which was last determined by the Board, itself,
in the proceeding designated as R-3639. The Board in that specified
_ proceeding determined that applicants’ appropriate bargaining unit
consisted of those airline mechanics, specialists, their helpers and
aporentices that had been certified bv the Board in case numbers R-407
ard R-576, and the shop laborers and janitors that had been added by the
Board in case number R-1976; and additionally, some of Eastern's fleet
service employees who perform ground service and cleaning functions a
preponderance of their time.
The Board, there, expressly excluded from applicants
bargaining craft and unit: Eastern's fleet service employees who worked
mostly in cargo and baggage handling; the separate unit of Eastern's
stock (store) personnel; and the separate unit of Eastern's print shop
.mployees.
6.
A subsequent proceeding designated R-3712 resulted in a
recommenustioa by an imipermanent and rather unusual neutral committee
voand applicants’ airline mechanics utit as last determined by the Board
in vase number .-3639 referred to in Parcgraph 5 above. This ill advisad
recommendation by that neucral commuitee would have expanded applicants’
sittuiory bargaining unit to include the great number of Eastern's fleet
service emplovees who work mostly as cargo and baggage handlers.
ce cece cee ee
fd bd
el ee ee ee ee ee
—
=i
A-51
i: wever, insoiar as applicants have been able to
cterming, this ill advised recommendation by this neutral commu:tee
wos never formally acted upon nor ceriified by the Board; and asa
result, the Board's last official determination of applicants’ bargaining
unit is found in the aforesaid case number R-3639, which specifically
excluded the great number of fleet service employees performing
primarily the work of cargo and baggage handlers.
7.
Notwithstanding that Eastern's airline mechanics and
related employees are entitled under the acts guarantee of their right to
’ organize and bargain as a craft of employees for collective bargaining
purposes, |,A,M, and Sastern have for a number of years violated the
integrity of applicants’ aforesaid bargaining unit of airline mechanics and
related employees, by in cffect ignoring applicants’ craft and bargaining
unit status, and unilateré lly including for all collective bargaining
purposes applicants’ said craft and bargaining unit of airline mechanics or
employees in one big communalized and indiscriminate class of employees;
including not only applicants’ said unit, but the separate bargaining unit
of Eastern's stock (store) clerks, and the separate bargaining unit of
Eastern's print shop employees, and the separate bargaining unit of
Eastern's fleet service employees performing mostly cargo and baggage
handling work and other various and sundry employees.
8,
As a result of this aforesaid improper communalization or
arnalgamation of applicants’ collective bargaining craft and unit by Eastern
ard [.A.M., applicants, and those similarly situated members of applicants’
collective bargaining craft and unit have been deprived of their right under
the Act to organize and bargain as such collectively, and to determine who
should be the representative of their collective bargaining craft and unit
.o° purposes of she Act.
=
Ree) meee le es ie i te
—
ee EE oe ME ee EE oe, BE ee BE es BE oe
—"
a
A-52
9.
And, as a further result of this said communalization or
amalgamation of applicants’ said collective parzaining craft and unit, by
Eastern and |.A.M., applicants are deprived of any effective voice in
the exercise of their rights guarantee by the Act with respect to
collective bargaining and with respect to their hours, wages and other
terms and conditions of employment, all in violation of the requirements
of the Act.
10.
Applicants show that while they protest this aforesaid
communalization or amalgamation of their collective bargaining craft and
mitt, they do not seek to disturb the representation of their bargaining
craft and unit by 1.A.M., nor the representation of any other appropriate
craft or class of Eastern's employees by 1.A.M.; for applicants seek
solely to have the Board exercise its statutory power and duty to preserve
the integrity of applicants’ collective bargaining craft and unit, by re-
quiring Eastern and I.A.M. to cease and desist from unlawfully
communalizing or amalgamating applicants’ collective bargaining craft
and unit with other separate collective bargaining crafts or classes of
Eastern's employees in derogation of the policies of the Act.
ll.
Applicants show that the last collective bargaining contract
between Eastern and 1.A.M. covering applicants aad other members of
their collective bargaining craft and unit expired on August 3}, 1973, and
tore currently is no collective bargaining contract in existence governing
épplicanis’ collective bargaining unit.
12.
Applicants show that this wrongfu! amalgamation and
communalization of Eastern's employees by Eastern and 1. A.M. is adversely
affecting anoroximately 4,599 airline mechanic and related employees,
Pare 4
A ee
A-53
aporueocisely 4,500 tleet s2rvice cinployees, approximately SOU stock
(store) personnel, approximately 25 printing shop employees.
13,
Applicants show that this said unlawful communalization
and amalgamation of these aforesaid separate collective bargaining crafts
and classes of employees and their respective collective bargaining units,
by Eastern and {.A.M., is in flagrant violation of the Board's prior unit
determinations, and of the Board's memorandum dated August 25, 1972
and entitled: "AIRLINE INDUSTRY HEARINGS (SEPTEMBER 15, 1970-
OCTOBER 7, 1971) REGARDING THE CONTEMPORARY APPROPRIATENESS
OF THE PRESENT CRAFT OR CLASS OF CLERICAL, OFFICE, FLEET
AND PASSENGER SERVICE EMPLOYEES AS SET FORTH IN CASE NUMBERS
R-1706, ET AL, IN EFFECTUATION OF THE PURPOSES OF THE
RAILWAY LABOR ACT,"
WHEREFORE, applicants pray U.at the Board's services
be invoked to determine the following matters:
(a) Whether the practices of Eastern and 1. A.M. in
carrying on their collective bargaining relationship have unlawfully
violated the Board's prior collective bargaining unit determinations
with respect to the crafts and classes of Eastern's airline
mechanics and related employees, fleet service employees,
stock (store ) employees, and printing shop employees; and
(b) Whether applicants’ right under the Act to organize
end bargain collectively as an appropriate craft and unit through
representatives of their own choice, and applicants’ right to have
the majority of their appropriate craft and unit to effectively assert
their voice in such matters, have been unlawfully violated by
Eastern in concert with |.A.M.; by means of the unlawful and
=
—
—
a ee ee ee ee ee ee ee ee ee ee ee
oo cee ll el
A-54
improper communalization and amalgamation of the separate
collective bargaining craft and unit consisting of Eastern
Airline mechanics and related employees, with other separate
collective bargaining classes and units of Eastern's employees;
and
(c) To determine such other related matters as may be
deemed proper and necessary in the premises.
Respectfully submitted,
APPLICANTS:
named
Applicants and for all other of
Applicants’ co-employees who are
sirmilorly situated,
CERTIFICATE OF SERV.:CE
I, the undersigned counsel for Applicants in the within and
foregoing application, do hereby affirm that | have this day served a true
and correct copy of the within and foregoing Application upon Eastern
Airlines, the carrier, and upon International Association of Machinists
and Aerospace Workers Union, the labor organization, by depositing the
same in the United States mail properly cddressed and with sufficient postage
‘This 28th day of February, 1974.
cH
SN ee ee ee ee ee ee ee ee eee eee eee ee ee ee a ee
—
A-55
ee wwe sat ew et CHM ALIUNAL A.ARPORT / MIAM: FLORIOA 33:46, 305°673 6978
— STAFF VCE PRES DENT
vie © gost \o8 (MOU STRIAL RELAT OWS
L
parton otro
Mr. Rowland K. Quinn, Jr.
Executive Secretary
National Mediation Board
Washington, D. C. 20572
Dear Mr. Quinn:
By your letter of March 8, 1974, you requested
comments regarding an application for Board services
filed by Mr. Tom Carter.
Eastern Airlines has not violated any of the
Board's determinations regarding appropriate bar-
gaining units on this carrier and believes that the
application filed by Mr. Carter cho ‘d be ¢cisnissed.
There has been no expansion of the classifications
covered by the agreement since 1946, except for the
adzicion of three small groups: Shop Laborers in
1950, Print Shop employees in 1952, and Ground
Communications and Flight Simulator Technicians in
1958.
We consider the denial of
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