Petition — International Ass'n of Machinists & Aerospace Workers v. Northeast Airlines, Inc.

OcTOBER TERM, 1976

No. 76-428 |

INTERNATIONAL ASSOCIATION OF MACHINISTS AND AERO-

SPACE WoRKERS and District 147 oF THE INTER-

NATIONAL ASSOCIATION OF MACHINISTS AND AERO-

SPACE WORKERS, Petitioners,

V.

NORTHEAST AIRLINES, INc., and Detta Air Lings, INC.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

JOHN O’B. CLARKE, JR.

HiaHsaw, MAHONEY & FRIEDMAN

1050 Seventeenth Street, N.W.

Washington, D. C. 20036

Rosert M. SEGAL

SEGAL, Roitman & COLEMAN

11 Beacon Street

Boston, Massachusetts 02108

PLaTo E. Papps

1300 Connecticut Avenue, N.W.

Washington, D. C. 20036

Counsel for Petitioners.

September 22, 1976 7

Press or Byron S. ADAMS PRINTING, INc., WASHINGTON, D. C.

E> >

TABLE OF CONTENTS

Page

ORDERS AND OPINIONS BELOW ..........cccccccccccess 1

ROPE CE ONE E FOE Ee RIE FE ee Te 2

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STATUTORY PROVISIONS INVOLVED ...........cceeeeee: 2

SPRATEMENT OF THB CARD onc cccccccccccccccccecccecs 3

Reasons FOR GRANTING THE WRIT:

I. The Decision of the Court of Appeals Destroyed

Statutory and Contractual Rights and Duties

Which Are Important to Stable Labor Rela-

tions in the Air Transportation Industry ..... 7

II. The Decision of the Court of Appeals Conflicts

with the Decision of This Court in John Wiley

ee G Bee 6. 0 6:6 0 a4ddcsdncsueeessees 9

III. The Decision of the Court of Appeals Deprives

Federal Courts of Their Traditional Jurisdic-

tion in a Manner Not Contemplated by Con-

gress and in Conflict with a Decision of This

Court and of the Eighth Circuit .............. 13

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INDEX TO CITATIONS

CasEs: Page

Augspurger v. Brotherhood of Locomotive Engineers,

010 F.2d 853 (8th Cir. 1975) ...............085. 14

Braniff-Mid-Continent Merger Case, 17 CAB 19 (1953) 13

Be is COD bb doh ekbeb es bbda kde ccs cn 10

Carey v. O'Donnell, 506 F.2d 107 (D.C. Cir. 1974), cert.

_ denied, 419 U.S. 1110 (1975) oo... eee eee. eee 14

Chicago & N. W. Ry. v. United Transportation Union,

Oe WI BOO ITNT ccesccccccadescssceseucas 8, 12

Delta-C&S Seniority List, 29 CAB 1347 (1959) .....) 43

Delta-Northeast Merger Case, CAB Order 73-9-42

sf | Sy panes 9,13, 15

Delta-Northeast Merger Case, Order 75-1-6, rev’d D.C.

Cir, No. 75-1066 (May 27, 1975) ......0.0.. oe

Detroit & T.S.L.R.R. v. United Transportation Union

396 U.S. 142 (1969) oo... eee ec eee ccc eeeeeee, "10

Howard Johnson Co. v. Detroit Local, Hotel Em-

_ ployees, 417 U.S. 249 (1974) ....... cc cccccccces 10

Kesinger v. Universal Airlines, Inc., 474 F.2d 1127

sl ran ene 14

Nader v. Allegheny Airlines, Ine., Sup. Ct. No. 75-455

NE PID a 14

Trans International Airlines—Saturn Airways—Ac-

quisition, CAB Docket 26951 ................., 8

Tunstall v. Brotherhood of Locomotive Firemen, 323

MMIII cs ccssrnugucdnenccaceseca, oa ae

Union of Professional Airmen v. CAB, 511 F.2d 423

SN ED Sitti ceca Weg ees cet bye dc oslo. 9

STATUTES :

Federal Aviation Act of 1958, 49 U.S.C. § 1371, et seq.

ing) 2, 3, 14, 15

National Labor Relations Act, 29 U.S.C. § 151, et seq.

/ 9,10

Railway Labor Act, 45 U.S.C. § 151, et seq. ....2, 3, 4, 6, 7,

8, 9, 10, 11, 12, 13, 14, 15

MISCELLANEOUS:

Judicial Code:

ENED oos cs cee ck cewGaccnsdibncenncs 2

ie EE 4c ne6n aon vacdencuceRbes bscnn. 6

IN THE

Supreme Court of the United States

OcToBER TERM, 1976

No.

INTERNATIONAL ASSOCIATION OF MACHINISTS AND AERO-

SPACE WorkKERS and District 147 of THE INTER-

NATIONAL ASSOCIATION OF MACHINISTS AND AERO-

sPACE WorKERS, Petitioners,

Vv.

NortHeEast Arruines, [nc., and Detta Arr LINES, INC.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Petitioners International Association of Machinists

and Aerospace Workers and one of its former Lodges,

District Lodge 147 [hereinafter, ‘IAM’ and ‘‘Dis-

trict 147,’’ respectively], respectfully request that a

writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

First Cireuit entered in this proceeding on June 25.

1976.

ORDERS AND OPINIONS BELOW

The judgment and opinion of the Court of Appeals

for the First Circuit were entered on June 25, 1976

(Appendices A and B at la-Ta, supra). The opinion

has been reported at 536 F.2d 975. The judgment of

the District Court for the District of Massachusetts

which dismissed petitioners’ complaint was entered on

July 25, 1975 (Appendix D at 11a). The District Court

filed an opinion with that order and that opinion, Ap-

2

pendix E at 13a-17a, has been re

. ported at 400 F.Supp.

372. On October 8, 1975, the District Court denied

petitioners’ moti i

pe motion for reconsideration (Appendix C

JURISDICTION

The judgment of the Court of A

The | ppeals for the Fi

Cireuit was entered on June 25, 1976, and this sane

for certiorari has been filed within 90 days of that date

This Court’s jurisdiction is invoked pursuant to 98

U.S.C. § 1254(1).

QUESTIONS PRESENTED

. 1, On a merger of Northeast Airlines j

Air Lines, was Delta required by the Railway lee

Act and by this Court’s decision in John Wiley &: Sens

v. Livingston to exert every reasonable effort with ti

tioners to settle all disputes concerning the aio of

collectively bargained ri ,

ghts of North ‘

represented by petitioners ? east employees

2. Was the District Court’s original jurisdiction

to enforce the right of employees under the Railway

Labor Act to bargain through a representative of their

choice preempted by the Civil Aeronautics Board’

order requiring Delta and Northeast to integrate the

seniority lists of their employees upon the merger?

STATUTORY PROVISIONS INVOLVED

This case involves ri i

. ghts and duties created b -

sg! 2, oe Second and Fourth of the Ralbery fe

rv Act, 49 U.S.C. §§ 152, First, Second (

ae 2, st, See and F \

Se ctions 401(k) (4), 408(b), and 1106 of the Podurnt

Aviation Act of 1958, 49 U.S.C. §§ 1371(k) (4), 1378

( b), and 1506, are also involved. These statutory ro-

visions appear herein as Appendix F at 19a-20a :

3

STATEMENT OF THE CASE

In 1971, Northeast Airlines, Inc., and Delta Air

Lines, Inc., two certificated common carriers by air,

agreed to merge and sought the approval of the Civil

Aeronautics Board [hereinafter, ‘‘CAB”’ or ‘*Board’’]

under Sections 401 and 408 of the Federal Aviation

Act of 1958, 49 U.S.C. §§ 1371, 1378. According to the

merger agreement, Delta was to be the surviving cor-

poration and was to assume ‘all the rights, privileges,

powers and franchises” possessed by Northeast prior

to the merger as well as all of Northeast’s debts, liabili-

ties and duties. App. I at 61.’

At the time that Northeast entered into its merger

agreement with Delta, Northeast was a party to two

collective bargaining agreements with the LAM cover-

ing approximately 1,000 Northeast employees in the

Supervisors, and Mechanies and Related Employees

erafts or classes. Those agreements were entered into

under the auspices of the Railway Labor Act, 45 U.S.C.

§ 151, et seq. Northeast had agreed in both of those

collective bargaining contracts to a provision which

had been in effect since 1949 (App. I at 40), and which

provided that the agreements were to be binding upon

Northeast’s successors or assigns, and that in ‘‘case of

a consolidation or merger,’’ the company and union

were to ‘‘meet without delay”’ to bargain ‘‘for proper

provisions for the protection of employees’ seniority

and other rights.’’ Art. 3, § B, App. I at 13.

In November 1971 District 147, the subordinate unit

of the IAM responsible for representing Northeast-

IAM employees, attempted to invoke Article 3(B), as

well as Section 2, First of the Railway Labor Act, to

negotiate with Northeast for proper provisions for the

1** App. I’’ refers to the appendix filed in Ist Cir. No. 72-1038

and designated as part of the record in this instant case. ** App.

IJ’’ refers to the separately paginated appendix filed in this case.

t

protection of employees’ seniority and other rights.

Northeast declined to negotiate the protection issue

prior to the merger, arguing that negotiations be-

fore then were premature. Northeast, however, did

agree ‘‘to discuss’? the question with District 147.

Dissatisfied, petitioners brought suit against North-

east in the United States District Court for the Dis-

trict of Massachusetts to compel Northeast. to bargain

and to enjoin the merger pending completion of that

bargaining. On February 3, 1972, the District Court

denied the petitioners’ request for a preliminary in-

junction, 337 F.Supp. 499, and on April 20, 1972, the

United States Court of Appeals for the First Cireuit

affirmed, albeit for a different reason, 473 F.2d 549.

This Court denied a petition for a writ of certiorari

on October 10, 1972. 409 U.S. 845.

In affirming the District Court’s denial of a prelim-

inary injunction, the Court of Appeals held that Sys-

tem Boards of Adjustment, and not federal courts,

had the jurisdiction under the Railway Labor Act to

interpret contracts and, thus, petitioners’ claim that

Article 3(B) of those contracts required pre-merger

bargaining was not properly before it. 473 F.2d at

994-55. The court also rejected petitioners’ second

argument that the issue was a major dispute requiring

bargaining. According to the court, since the merger

agreement was before the CAB pending its approval,

any question of protections to be afforded employees

in the post-merger operations was not a mandatory

subject for bargaining by Northeast. Jd. at 559-60.

Earlier in its opinion the court had noted that this

Court’s decision in Wiley may impose a duty on Delta

under the Northeast contract, Id. at 593n.5, but the

court stated that it expressed ‘‘no opinion at this time

as to whether Delta may be required to negotiate sepa-

rately with NE workers about any of the changes [in

5

post-merger employment rights] when they occur.”’

. at 560n.17.

“shortly after the Court of Appeals rendered its

decision, District 147 presented on April 24, 1972, "

claim under Article 3(B) to ti.» System Board of Ad-

justment under the Northeast-I[AM mechanics’ con-

tract. Northeast countered on procedural grounds,

asserting in part that the contractual grievance

untimely. App. II at 83. On July 12, 1972, a neutra

referee agreed with Northeast’s challenge on proce-

dural grounds and dismissed District 147’s grievanee.

. IT at 84.

~~ hon meantime, by orders issued May 19, 1972, the

CAB approved the Delta-Northeast merger and im-

posed labor protective provisions asa condition of its

approval. App. IT at 47-78. Besides providing mone-

tary protections for employees affected by the ee

the provisions at Section 3 called for the integration

of the seniority lists of the Northeast and Delta em-

ployees ‘‘in a fair and equitable manner, including,

where applicable, agreement through collective bar-

gaining between the carriers and the 4g oe

of the employees affected.’’ App. IT at 61. On July

5, 1972, Delta circulated to all Northeast employees .

notice which welcomed them into the F Delta family

and informed them of their new conditions of employ-

ment once they became part of the merged system.

D.App.C.2. These new conditions of employment coun-

termanded several contractual rights of the en saeroa

TAM employees, such as bidding and bumping apie y

rights, and effectively deprived the employees of antici-

pated contractual rewards for long and faithful serv-

2‘‘T) App.C’”’ refers to a notice sent by Delta which was —

in the record in the District Court and inadvertently nea =

from the appendix in the Court of Appeals. wc ty An.

1975, the appellate court granted petitioners permission [to

to that notice in their brief.

6

ice to Northeast, such as increases in vacation leaves

and severance pay.’ On August 1, 1972, Northeast

merged into Delta, and sometime thereafter, former

Northeast-IAM employees were absorbed into the

Delta system, using an integrated seniority list that

had been worked out with a committee of Northeast

mechanics, and not with the IAM.

Petitioners’ complaint was still pending in District

Court after the merger and in October 1973 petitioners

moved to add Delta as a defendant. Petitioners’ suit

was grounded on, among others, 28 U.S.C. § 1337 and

the Railway Labor Act, and sought to require Delta

to bargain with the IAM over what contractual rights

under the Northeast-IAM contracts survived the merg-

er, if atall. Delta has consistently refused to acknowl]-

edge that it has an obligation to bargain over those

protections or to arbitrate if an impasse was reached.

Petitioners also sought by their amended complaint

to set aside the integrated seniority list since it was

not negotiated with the duly designated representative

under the Railway Labor Act—the IAM.

On July 25, 1975, the District Court dismissed peti-

tioners’ complaint, concluding that the complaint raised

issues within the scope of the CAB labor protective

provisions and that the Board had exclusive jurisdic-

tion to consider those claims. Appendix E at 17a.

Petitioners moved for reconsideration, and on October

8, 1975, the court denied that motion. Appendix C at

9a.

* An example of the Northeast-IAM system of future benefits

for past service is Article 17, Section B, of the mechanics contract,

which provided:

Employees who have grown old in the service of the Com-

pany and have become unable to follow their regular work

to advantage, shall be given preference of such light work as

they are able to handle in their work classification.

ee oe a

7

Even though on appeal the Court of Appeals con-

eluded that the District Court had erroneously found

that the CAB had exclusive jurisdiction to consider

petitioners’ attack on Delta’s refusal to bargain, the

appellate court nevertheless affirmed, holding that since

petitioners were not certified to represent Delta em-

ployees, Delta had no obligation to bargain with them

over what rights under the Northeast-IAM contract

survived the merger, if at all. Appendix B at 6a. The

court then distinguished this Court’s decision in John

Wiley & Sons v. Livingston, 376 U.S. 543 (1964), by

stating that Wiley required arbitration ‘‘but did not

require negotiation with the union, which is quite a dif-

ferent story.’”? Appendix B at 6a-7a. Since petitioners

had not alleged that they had instituted contractual

grievance proceedings over Delta’s refusal to bargain,

the court found that Wiley did not apply. Moreover,

the Court of Appeals for the First Circuit agreed with

the District Court that petitioners’ challenge to the

manner in which the seniority list was integrated, albeit

couched in terms of a violation of the Railway Labor

Act, was within the CAB’s jurisdiction and was outside

the court’s subject matter jurisdiction. Appendix B

at 4a.

REASONS FOR GRANTING THE WRIT

I

The Decision of the Court of Appeals Destroyed Statutory and

Contractual Rights and Duties Which Are Important to

Stable Labor Relations in the Air Transportation Industry

Fundamental to the entire statutory scheme of labor

relations established by the Railway Labor Act, 45

U.S.C. § 151, et seq., is the command of Section 2,

First of that Act, 45 U.S.C. § 152, First, that both

employees and carriers ‘‘exert every reasonable effort

to make and maintain agreements ... , and to settle

all disputes....’? That duty is in essence the ‘‘heart”’

8

of the Act, Chicago d& N.W. Ry. v. United Transporta-

tion Union, 402 U.S. 570, 574 (1971), and colors all of

the obligations and rights of the Act, including the

procedures for settling both major and minor disputes.

Petitioners relied upon that right and obligation to

enforce the right of the Northeast-[AM employees to

determine what contractual rights under the Northeast-

IAM contracts may have survived the merger. By

failing to recognize that the right to act as the exclu-

sive representative under the Act must of necessity

survive until the contractual right survival question is

resolved, John Wiley & Sons v. Livingston, 376 U.S.

543, 552 (1964), the Court of Appeals has destroyed

the Northeast-[AM employees’ rights under Section 2,

First at a very critical stage of their employment. By

taking away the means to enforce those contractual

rights, the court has in effect taken away those rights.

The problem presented by this case is not limited

solely to Northeast employees; rather, it is a potential

threat to approximately 180,000 employees who are

emp'oyed by the 143 air carriers under the jurisdiction

of the National Mediation Board and covered by the

528 contracts under the Railway Labor Act which are

currently in effect... Because of today’s economic

environment, many air earriers caught in the ever

ongoing rise in fuel prices are searching both the in-

dustry and outside for available merger partners.

P..4., Trans International Airlines—Saturn Airways—

Acquisition, CAB Docket 26951. Thus, it is highly

likely that more mergers will be proposed in the near

future. Employees’ rights under various collective bar-

gaining agreements will obviously be affected by such

mergers and, consequently, it becomes important to

know before the merger, and the loss of those rights,

* Conversation of September 13, 1976, with Mr. Michael H.

Cimini, Senior Research Analyst, NMB.

9

exactly what those rights are and, more importantly,

how to enforce them. But, as a result of the Court of

Appeals decision, especially when viewed together with

its earlier decision at 473 F.2d 549, airline employees

do not know if the principles of Wiley apply to them

and, if they do, how they can be enforced.

Rights and obligations in merger situations of em-

ployees and carriers in the air transportation industry

are of great importance today, and, petitioners submit,

should not be permitted to remain as confused as the

Court of Appeals decision has left them. Unlike in-

dustries covered by the National Labor Relations Act,

29 U.S.C. § 151, et seq., with its National Labor Rela-

tions Board, the air transportation industry does not

have a special administrative agency charged with en-

forcing and policing our national labor relations policy

to assure a stable labor environment. While Congress

has required carriers and employees to establish arbi-

tration tribunals to resolve contract disputes, Section

204, 45 U.S.C. § 184, the courts are the only available

meaningful forum open to employees to enforce the

commands of Section 2, First.° If access to that forum

is denied, the foundation for stable labor relations

which has worked so well in the past may be under-

mined.

II

The Decision of the Court of Appeals Conflicts With the Deci-

sion of This Court in John Wiley & Sons v. Livingston

As this Court made clear in John Wiley & Sons v.

Livingston, supra, a collective bargaining agreement

‘is not an ordinary contract.’’ Jd. at 550. Rather, it

is a code regulating the industrial community and

is created by foree of law under our national labor

5 See, Delta-Northeast Merger Case, CAB Order 73-9-42 at 4;

Union of Professional Airmen v. CAB, 511 F.2d 423, 426 n.4 (D.C.

Cir. 1975).

10

relations acts by negotiations between union and

management. Moreover, a Railway Labor Act contract

establishes rates of pay, rules, and working conditions

that may be changed only by a deliberately long and

drawn out procedure, e.g., Detroit d& T. S. L. R.R. v.

United Transportation Union, 396 U.S. 142, 148-51

(1969), and may continue in force even though that

agreement by its terms has expired. E.g., Brotherhood

of Railway Clerks v. Florida E. C. Ry., 384 U.S. 238,

246-47 (1966). Recognizing the extra-contractual na-

ture of collective bargaining agreements, this Court in

Wiley, a case arising under the National Labor Rela-

tions Act, stated that:

We hold that the disappearance by merger of a

corporate employer which has entered into a col-

lective bargaining agreement with a union does

not automatically terminate all rights of the em-

ployees covered by the agreement, and that, in

appropriate circumstances, . .. the successor em-

ployer may be required to arbitrate with the union

under the agreement. 376 U.S. at 548.

That basic holding was reaffirmed recently by this

Court in Howard Johnson Co. v. Detroit Local, Hotel

Employees, 417 U.S. 249, 254 (1974).

In Wiley this Court rejected an argument that the

union which represented the predecessor’s employees

was not a proper party to represent them on the survi-

val issue. Br. for Petitioner at 44-48, Sup. Ct. No. 91,

Oct. 1963 Term. Noting that the union did not assert

any bargaining rights independent of the agreement,

and that it did not seek to negotiate a new agreement,

376 U.S. at 551, this Court expressly found that the

old union was a proper party:

The fact that the Union does not represent a

majority of an approximate bargaining unit in

Wiley does not prevent it from representing those

employees who are covered by the agreement which

ee On Om eee

11

is in dispute and out of which Wiley’s duty to

arbitrate arises. Jd. at 551.n.5.

In the case at bar, petitioners have relied upon the

principles expressed in Wiley to ask Delta to bargain

with them about what rights of the Northeast-L[AM

contracts survived the merger and, if so, for how

long those rights survived. Petitioners have stated

that they are ‘‘not seeking the right to act as the

bargaining representative for the former NE mechan-

ies in their employment relationship with Delta after

the merger was consummated and the NE-IAM em-

ployees were fully absorbed into the Delta System.”’°

Reply Br. at 3, Ist Cir., No. 75-1435. Moreover, as in

Wiley, petitioners are not seeking rights which would

have conflicted with any other collective bargaining

contract since Delta did not have a contract covering

the same crafts or classes of employees as were repre-.

sented by the IAM on Northeast. See 376 U.S. at

592n.5.

Nevertheless, the Court of Appeals concluded that

since the ‘‘merger created real doubts about whether

[petitioners] ... represent the majority of any Delta

eraft or class of employees,’’ Appendix B at 6a,

Delta had no obligation under the Railway Labor Act

to bargain with petitioners over the contractual rights

survival issue. In making that ruling, the Court of Ap-

peals completely disregarded the fact that the LAM was

the duly designated representative of certain North-

east employees; and it was that certification which

petitioners were seeking to enforce. By ignoring that

fact, the Court of Appeals disregarded this Court’s

holding in Wiley that the union which represented the

employees originally covered by the contract in question

®The approximately 1,000 Northeast employees represented by

the IAM at the time of the merger constituted approximately 25

to 30% of the Delta employees in the same crafts or classes.

12

is the proper party to represent those employees in the

contractual rights survival issue after the merger.

376 U.S. at 551n.5.,

ihe Court of Appeals attempted to distinguish

Wiley by arguing that the duties to bargain and to

arbitrate are different, and somehow distinct. Peti-

tioners respectfully submit that such a distinction is

meaningless, and more importantly both contravenes

the express commands of Section 2, First of the Rail-

way Labor Act ‘‘to exert every reasonable effort . . . to

settle all disputes,’’ and emasculates this Court’s deci-

sion in Wiley. Arbitration, it is respectfully sub-

mitted, is not separate and distinct from the duty to

bargain imposed by Section 2, First of the Act. Rather,

it is an integral part of that duty and comes into play

only after the parties, because of a disagreement after

proper bargaining, are unable to reach an agreement.

The duty to bargain, it is submitted, is the basie right

and it begins with negotiations and continues through

the arbitration. See, Chicago d& N. W. Ry. v. United

Transportation Union, supra. Consequently, it is

meaningless to artificially dissect that right as the

Court of Appeals has attempted.

The Court of Appeals disregard of the continuing and

surviving nature of the LAM certification to represent

Northeast employees on this limited issue raises prob-

lems which are important to peaceful and stable labor

relations. Employees and carriers in the airline in-

dustry, as well as in all other industries, need to know

who is a proper party to represent them in bargaining

about what contractual rights survive a merger. More-

over, both employees and carriers need to know if the

principles of Wiley are still good law. While this

Court bas recently stated that they are, the Court of

Appeals, by depriving the-employees of a means to

enforce them, has said they are not. Petitioners re-

spectfully ask this Court to resolve this dispute.

ee re Sa

13

Ill

The Decision of the Court of Appeals Deprives Federal Courts

of Their Traditional Jurisdiction in a Manner Not Contem-

plated by Congress and in Conflict With a Decision of This

Court and of the Eighth Circuit

Seniority rights in the air transportation industry,

as in most other industries, are probably one of the

most important collective bargained for rights em-

ployees possess. Seniority generally determines who

works, when they work, and who is laid off first. Con-

sequently, it is not surprising that any threatened

change in those rights, particularly seniority rankings

vis-a-vis other employees, can be potentially explosive.

The CAB has recognized this potential cause of unrest,

and for the past two and a half decades has normally

required that in case of a merger of two airlines “*pro-

vision shall be made for the integration of seniority lists

in a fair and equitable manner....’’ /.g., Appendix B

at 4a n.1; see, Braniff-Mid-Continent Merger Case, 17

CAB 19, 21 (1953) (Supplemental Opinion).

Simply stated, the policy of the Board in [merger

situations]... has been to charge the receiving com-

pany with the duty and responsibility of making

provisions for the integration of the seniority lists

in a fair and equitable manner, utilizing when ap-

plicable the collective bargaining procedures con-

templated by the Railway Labor Act. Delta-CdS

Seniority List, 29 CAB 1347, 1349 (1959).

In the case at bar, petitioners have asserted that if

Delta engaged in negotiations with a group of North-

east emplovees represented by the IAM, Section 2, See-

ond of the Railway Labor Act, required that those col-

lective negotiations be with the exclusive bargaining

representative of those employees—the [AM—and with

no other bogus representative.’ Ordinarily, federal

7 But see, Delta-Northeast Merger Case, Order 73-9-42 (Septem-

ber 11, 1973).

14

courts have subject matter jurisdiction to consider a

claim that Section 2, Second was violated. Accord,

Tunstall v. Brotherhood of Locomotive Firemen, 323

U.S. 210 (1944). However, on this issue the Court of

Appeals concluded that the jurisdiction of the federal

courts was preempted by that of the CAB since peti-

tioners were questioning the manner in which Delta

complied with the CAB’s order, and that ‘jurisdiction

in the first instance to rule on compliance with its own

Labor Protective Pr visions and to determine the va-

lidity of the seniority lists belongs with the CAB... .”’

Appendix B at 5a.

In so ruling, the appellate court followed the dicta in

Kesinger v. Universal Airlines, Inc., 474 F.2d 1127,

1131-52 (6th Cir. 1973), and the stated reason for the

holding in Carey v. O’ Donnell, 506 F.2d 107, 110 (D.C.

Cir, 1974), cert. denied, 419 U.S. 1110 (1975).

This conclusion of the Court of Appeals that the

CAB has exclusive jurisdiction to hear petitioners’

claims that Section 2, Second of the Railway Labor Act

was violated by Delta, is in conflict with this Court’s

recent decision in Nader vy. Allegheny Airlines, Inc.,

Sup. Ct. No. 75-455, decided June 7, 1976, where this

Court had reached a different conclusion on an analo-

gous issue-—-i.e., whether the Board’s authority under

Section 411, 49 U.S.C. § 1381, to stop ‘‘unfair”’ or ‘‘de-

ceptive”’ practices of airlines preempted similar issues

in fraudulent overbooking actions. Moreover, the Court

of Appeals conclusion of preemption is in conflict with

the decision of the Eighth Circuit in Augspurger v.

Brotherhood of Locomotive Engineers, 510 F.2d 853

(Sth Cir. 1975), where the court concluded that courts

need not defer to the primary jurisdiction of the Inter-

state Commerce Commission in seniority integration

matters where a violation of the Railway Labor Act—

i.e., duty of fair representation—is alleged.

15

Exclusive jurisdiction in the CAB to consider peti-

tioners’ claims under Section 2, Second of the Railway

Labor Act is also contrary to the expressed intent of

Congress stated in Section 1106 of the Federal Aviation

Act, 49 U.S.C. § 1506, that: ‘‘ Nothing contained in this

Act shall in any way abridge or alter the remedies now

existing at common law or by statute... .’’ Moreover,

exclusive jurisdiction is inappropriate in matters in-

volving labor issues arising from labor protective pro-

visions because, as the CAB has stated:

[I]t [the Board] lacks expertise in labor matters,

that it is not charged with responsibility to act as

a labor board for the aviation industry, and that its

limited resources are more appropriately directed

to the resolution of those tasks directly assigned

to it and with which it is familiar. Delta-North-

east Merger Case, supra note 7, Order 73-9-42 at 4.

Because of the volatile and important nature of the

subject of seniority integration, it is reasonable to

expect that challenges to that integration will be raised

in almost every merger approved by the CAB. At the

present time it is unclear whether the Board is the only

forum available to hear those challenges; while some

courts have said it is, this Court and the Eighth Cireuit

have indicated otherwise. More importantly, the Board

itself, having disavowed any interest in the compliance

issue, does not yet know the full extent of its duties in

such challenges. Since this question is so important to

stable labor relations, petitioners respectfully request

that this Court settle this question so that employees’

rights are not lost in the procedural maze that has

been created by this jurisdictional dispute. Compare,

Delta-Northeast Merger Case, Order 73-942, with,

Delta-Northeast Merger Case, Order 75-1-6, rev’d, D.C.

Cir. No. 75-1066, decided May 27, 1975.

16

CONCLUSION

For these reasons, a writ of certiorari should issue

to review the judgment of the United States Court of

Appeals for the First Circuit.

Respectfully submitted,

JoHN O’B. CLARKE, JR.

Hicusaw, MAHONEY & FRIEDMAN

1050 Seventeenth Street, N.W.

Washington, D. C. 20036

Rosert M. Secan

Seca, Rorrman & CoLEMAN

11 Beacon Street

Boston, Massachusetts 02108

Pato E. Papps

1300 Connecticut Avenue, N.W.

Washington, D. C. 20036

Counsel for Petitioners.

September 22, 1976

APPENDIX A

; Judgment of the United States Court of Appeals for the

First Circuit entered June 25, 1976

la

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 75-1435

INTERNATIONAL ASSOCIATION OF MACHINISTS

AND AEROSPACE WORKERS, ET AL.,

Plaintiffs, Appellants,

V.

NortHeast Arruines Ino. and

Detta ArruinEs Ino.,

Defendants, Appellees.

Judgment

Entered June 25, 1976

This cause came on to be heard on appeal from the United

States District Court for the District of Massachusetts, and

was argued by counsel.

Upon consideration whereof, It is now here ordered, ad-

judged and decreed as follows: The judgment and the or-

der of the District Court are affirmed.

By the Court:

/s/ Dana N. Gatiup

Clerk

[ec: Messrs. Segal and Starrett. ]

APPENDIX B

Opinion of the United States Court of Appeals for the

First Circuit entered June 25, 1976

3a

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 75-1435

INTERNATIONAL ASSOCIATION OF MACHINISTS

AND AEROSPACE WORKERS,

and

District 147 or THE INTERNATIONAL ASSOCIATION OF

MAcHINISTs AND AgERospAcE WORKERS,

Plaintiffs, Appellants,

Vv

Norrueast Areurngs, Ino.,

and

Detta Arr Lines, Inc.,

Defendants, Appellees.

Appeal from the United States District Court

for the District of Massachusetts

[Hon. Josern L. Tauro, U.S. District Judge}

400 F. Supp. 372

Before Corrtn, Chief Judge,

Avpricu and CampBELL, Circuit Judges.

Robert M. Segal, with whom Donald J. Siegal, Segal

Roitman & Coleman, John O’B. Clarke, Jr., Highsaw &

Mahoney, and Plato E. Papps were on brief, for appel-

lants.

Loyd M. Starrett, with whom Henry E. Foley, Paul V.

Lyons, Foley, Hoag & Eliot, Frank F. Rox, and Robert 8S.

Harkey were on brief, for appellees.

June 25, 1976

Corrin, Chief Judge. This appeal is from a summary

judgment dismissing plaintiffs-appellants’ amended com-

plaint on jurisdictional grounds. 400 F. Supp. 372. Plain-

tiffs were the bargaining representatives of certain North-

4a

east Airline employees prior to the merger of Northeast

into Delta Air Lines. The merger occurred pursuant to a

Civil Aeronautics Board order which included a number

of ‘‘Labor Protective Provisions’’, one of which specifically

provided for the integration of seniority lists.'' Plaintiffs’

amended complaint alleges that defendants violated the

Railway Labor Act, 45 U.S.C. §§ 151 et seq., and the unions’

two collective bargaining agreements with Northeast by

refusing to bargain with plaintiffs about the post-merger

rights of the unions’ members. This court has already

held it is without jurisdiction to consider the alleged viola-

tion of the collective bargaining agreements, International

Ass’n of Machinists and Aerospace Workers v. Northeast

Airlines, Inc., 473 F.2d 549, 554-55, cert. denied, 409 U.S.

845 (1972), and that, on the merits, Northeast had no duty

to bargain with plaintiffs in advance about the effects of the

merger upon plaintiffs’ members. Jd. at 550-60. Plaintiffs’

remaining challenges are to Delta’s failure to discuss the

integration of seniority lists with them and its refusal in

general to bargain with them about whether any rights

arising from the collective bargaining agreements survived

the merger.

Allowing the union, which had represented certain em-

ployees before the merger, to participate in discussing in-

tegration of seniority lists would seem not to involve an

onerous burden, although the CAB, under whose Labor

Protective Provisions the integration oceurred, has held

that such a union need not automatically be recognized as

the employees’ representative for Labor Protective Provi-

* “Section 3. Insofar as the merger affects the seniority rights

of the carriers’ employees, provisions shall be made for the inte-

gration of seniority lists in a fair and equitable manner, includ-

ing, where applicable, agreement through collective bargaining

between the carriers and the representatives of the employees

affected. In the event of failure to agree, the dispute may be

submitted by either party for adjustment in accordance with

section 13.”’

5a

sion purposes. Delta-Northeast Merger Case, CAB Order

73-9-42, at 5. However, the real question is not whether it

would have been a good idea for Delta to discuss the inte-

gration of seniority lists with plaintiffs, but whether the

district court had jurisdiction to decide that it should have

done so. The CAB has broad authority to impose seniority

lists in airline mergers, even in contravention of existing

collective bargaining agreements, and to determine the

procedural methods to be followed. F.g., Kent v. CAB,

204 F.2d 263 (2d Cir.), cert. denied, 346 U.S. 826 (1953) ;

American Airlines, Inc. v. CAB, 445 F.2d 891 (2d Cir. 1971),

cert. denied, 404 U.S. 1015 (1972). Accordingly, even if we

assume that, as plaintiff argues, the CAB intended Rail-

way Labor Act rights to control the method of integration,

jurisdiction in the first instance to rule on compliance with

its own Labor Protective Provisions and to determine the

validity of the seniority lists belongs with the CAB, not-

withstanding any diffidence it may have shown toward un-

dertaking this task. See Kesinger v. Universal Airlines,

Inc., 474 F.2d 1127 (6th Cir. 1973); Carey v. O'Donnell,

506 F.2d 107 (D.C. Cir. 1974), cert. denied, 419 U.S. 1110

(1975). Therefore, to the extent that plaintiffs attack the

seniority lists, and argue that the procedures Delta fol-

lowed in integrating them were inconsistent with the com-

mands of the Labor Protective Provisions, the district

court correctly ruled that it did not have jurisdiction.

On the other hand, plaintiffs also assert rights independ-

ent of, and in no way contrary to, the Labor Protective

Provisions, such as arguably accrued severance and vaca-

tion benefits. The district court was incorrect in assuming

that the only matters about which plaintiffs wanted to bar-

gain directly involved the integration of the seniority lists.

The CAB does not seek and need not have exclusive juris-

diction over all labor disputes caused by an airline merger.

Trans International Airlines, Inc.—Acquisition Agreement,

CAB Orders 76-3-126/-127 at 21-22; Air Line Employees

Ass’n v. CAB, 413 F.2d 1082 (D.C, Cir. 1969) (per curiam).

6a

Where there is no real question about whether a union is

the legitimate representative of an airline’s employees, the

function of deciding the extent of the duty to bargain rests

properly with federal courts. International Ass’n of Ma-

chinists v. Northeast Airlines, Inc., 473 F.2d 549, at 555-56.

Plaintiffs are not challenging the CAB Order, or saying it

was incomplete. Thus, to the extent they complain that,

apart from the Labor Protective Provisions, Delta had a

duty to bargain with them, the district court erred in dis-

missing these claims for lack of jurisdiction.

However, the duty to bargain imposed by the Railway

Labor Act is a duty to bargain with the chosen representa-

tive of the majority of a craft or class of employees. 45

U.S.C. § 152 Fourth; Virginian Ry. v. System Federation

No. 40, Ry. Employees, 300 U.S. 515, 548 (1937). At the

very least, the merger created real doubts about whether

plaintiffs represent the majority of any Delta craft or class

of employees, and where there is such doubt, federal courts

leave resolution of the dispute to the National Mediation

Board. General Comm. of Adjustment, Bhd. of Locomo-

tive Engineers v. Missouri-K.-T. R.R., 320 U.S. 323 (1943) ;

Ruby v. American Airlines, Inc., 323 F.2d 248 (2d Cir.),

cert denied, 376 U.S. 913 (1963); cf. Brotherhood of Ry.

& S.S. Clerks v. United Air Lines, Inc., 325 F.2d 576 (6th

Cir.), cert. dismissed as improvidently granted, 379 U.S.

26 (1963). In the absence of National Mediation Board

certification, 45 U.S.C. § 152 Ninth, there is no basis for

finding a duty on the part of Delta to negotiate with plain-

tiffs. Their complaint was properly dismissed.

The Supreme Court decision in John Wiley & Sons, Inc.

v. Livingston, 376 U.S. 543 (1964), does not mandate a

different result, even apart from the fact that Railway

Labor Act obligations are not identical to National Labor

Relations Act obligations, cf. Ruby v. American Airlines,

Inc., supra, 323 F.2d at 255-56. Wiley required the em-

ployer to submit to arbitration, but did not require nego-

7a

tiation with the union, which is quite a different duty.

Plaintiffs do not allege that they have instituted grievance

proceedings which are outstanding or that Delta has re-

fused to submit to a System Board of Adjustment resolu-

tion of particular disputes concerning the survival of rights

under the Northeast collective bargaining agreements. Cf.

Flight Engineers Int’l Ass’n, EAL Chapter v. Eastern Air

Lines, Inc., 359 F.2d 303 (2d Cir. 1966). Therefore, the

question whether Delta has a duty to submit to System

Board of Adjustment proceedings is not before us’ and,

in the present context, Wiley mandates no, other obliga-

tions.

The judgment is affirmed.

21It would appear that such a determination would be within

the jurisdiction of a federal court. 359 F.2d at 309. Should such

a determination become necessary, the extent of the duty, if any,

would be determined by whether the Northeast collective bargain-

ing agreements have in fact expired. Jd. at 309-11. In general,

the terms of a Railway Labor Act collective bargaining agreement

are not controlling after the collective bargaining agreement and

any subsequent status quo period expire. International Ass’n of

Machinists v. Reeve Aleutian Airways, Inc., 469 F.2d 990 (9th

Cir.), cert. denied, 411 U.S. 982 (1972).

APPENDIX C

Order of the District Court for the District of Massachusetts entered

on October 8, 1975, denying petitioners’ motion for reconsideration

9a

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

Civil Action No. 72-303-T

INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE

Workers anp District 147 or THE INTERNATIONAL As-

SOCIATION OF MacHinists AND AEROSPACE WorKERS,

Plaintiffs

Vv.

NortTHeast Arrures, Inc., Detta Arrutnes, Inc.,

Defendants

Order

Tavro, D.J.

1. This court’s order of August 13, 1975, retaining juris-

diction in the above-entitled action pending its decision on

the plaintiff’s motion to alter, amend and vacate its judg-

ment and order of July 28, 1975, is VacarTen.

2. Upon consideration of the briefs submitted by the

parties, the plaintiff’s motion to alter, amend and vacate

this court’s judgment and order of July 28, 1975, is Dr-

niep. Civil Aeronautics Board Order No. 75-1-6, upon

which the plaintiff’s motion was based, was subsequently

reversed by the United States Court of Appeals for the

District of Columbia Circuit. Committee of Former North-

east Stewardesses v. Civil Aeronautics Board, No. 75-1066

(D.C. Cir. May 27, 1975). Moreover, the arguments made

by the plaintiff in his brief were foreclosed by the First

Cireuit’s earlier decision in this case. International Asso-

ciation of Machinists and Aerospace Workers, et al. v.

Northeast Airlines, Inc., 473 F.2d 549, 559-60 (1st Cir.),

aff’g., 337 F. Supp. 499 (D. Mass.), cert. denied, 409 U.S.

845 (1972).

/s/ J. L. Tavro

United States District Court Judge

APPENDIX D

Order of the District Court for the District of Massachusetts

entered on July 25, 1975, dismissing complaint

lla

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

Civil Action No. 72-303-T

INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE

Workers AND District 147 or tHe INTERNATIONAL As-

socIATION oF Macnurinists aNnD AEROSPACE WORKERS,

Plaintiffs

v.

Nortueast Arguines, Inc., Detta Arrives, Inc.,

Defendants

Order of Dismissal

July 25, 1975

Tauro, D.J.

In accordance with the Court’s Opinion and Order en-

tered this date, Ir Is Orperep that the complaint be, and

it hereby is, dismissed.

By the Court,

/s/ Dantet P. Loven III

Deputy Cleri.

13a

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

Civil Action No, 72-303-T

INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE

Workers anv District 147 or tHe INTERNATIONAL As-

SOCIATION OF Macuinists AND AEROSPACE WorKERs,

Plaintiffs

Vv.

Nortueast Arrives, Inc., Detta Arrives, INc.,

Defendants

Opinion and Order

July 25, 1975

Tauro, D.J.

Plaintiffs (the Union) originally brought this action to

compel Northeast Airlines, Inc. (Northeast) to negotiate

with the Union prior to consummation of a merger of

Northeast into Delta Airlines, Inc. (Delta) with respect

to protective provisions relating to post-merger seniority

and certain other matters. Plaintiff based its claim on

section 3(b) of its collective bargaining agreement with

Northeast and on section 152 First of the Railway Labor

Act, 45 U.S.C. §152 First. The Union’s request for a

preliminary injunction to enjoin Northeast and Delta from

consummating the merger was denied. International

Association of Machinists and Aerospace Workers v.

Northeast Airlines, Inc., 337 F. Supp. 499 (D. Mass.),

aff'd, 473 F.2d 549 (1st Cir.), cert. denied, 409 U.S. 845

(1972). Thereafter, on August 1, 1972, the merger of

Northeast into Delta was consummated and Northeast

ceased to exist as a separate entity. The Union amended

its complaint and now seeks an order compelling Delta to

negotiate with the Union regarding seniority rights of the

former Northeast employees represented by the Union.

l4a

Defendant Northeast’s motion to dismiss was denied on

November 29, 1973. After the complaint was amended to

add Dalta as a defendant, defendants filed a motion for

reconsideration of the denial of the motion to dismiss and

a motion for summary judgment, claiming that this court

does not have subject matter jurisdiction over this action.

For the reasons stated below, defendants’ motion for

summary judgment is granted.

I

In upholding the district court denial of the request for

a preliminary injunction, the Court of Appeals for the

First Cireuit held that this court does not have jurisdiction

to interpret the terms of a collective bargaining agreement.

Disputes requiring the interpretation of the terms of

a collective bargaining agreement are minor disputes.

The Act provides that such disputes may be submitted

by either party for settlement by a System Board of

Adjustment and that the award of the Board is not

subject to judicial review. 45 U.S.C. § 184. Because

this section vests exclusive jurisdiction in the System

Boards of Adjustment, the courts do not have juris-

diction to interpret the terms of a collective bargaining

agreement.

International Association of Machinists and Aerospace

Workers v. Northeast Airlines, Inc., 473 F.2d at 554-55

(citations omitted). Although this court does not have

jursdiction to hear the Union’s Article 3B claim, it is note-

worthy that the Union has submitted that claim to the

System Board of Adjustment and has received an adverse

ruling.

II

The Union claims that Delta, as the successor corporation

to Northeast, has a duty to negotiate with the Union

regarding seniority and other rights under 45 U.S.C. § 152

15a

First. Delta claims that this court does not have jurisdic-

tion to determine that question.’

The Supreme Court established that section 152 First

is more than an exhortatory principle; that it had the force

of law and that courts were the proper body to enforce

its provisions. Chicago & N.W. Ry. v. United Transporta-

tion Union, 402 U.S. 570 (1971). The general rule, however,

is not applicable where the dispute arises out of a merger

of two airlines. Congress has provided a special mecha-

nism for resolving the numerous problems attendant on

such a merger. All such mergers will be approved only

where the Civil Aeronautics Board (CAB) has found that

the merger is not inconsistent with the public interest.

CAB is authorized to condition approval of airline mergers

on the acceptance by the parties of labor protective pro-

visions designed to protect the employees of the merged

airlines from any adverse impact the merger may have on

conditions of employment.

One of the policies behind this grant of authority to

the CAB is to prevent mergers adjudged by the Board

to be in the public interest from being obstructed by

labor disputes. Because of the danger of such obstruc-

tion, courts have held that the procedures of the Rail-

way Labor Act are not available for disputes arising

out of the merger which pertain to subjects covered by

‘In its opinion affirming the denial of injunetive relief, the

Court of Appeals stated ‘‘We express no opinion at this time as

to whether Delta may be required to negotiate separately with

NE workers about any of the changes when they oceur.’’ 473

F.2d at 560 n. 17. At that time, the CAB had not yet issued its

order. The Court of Appeals had taken note of this fact. ‘‘The

effects of the NE-Delta merger still depend on changes the nature

of which are not at present known, because the CAB has not yet

issued its order.’’ 473 F.2d at 559. Thus, the Court of Appeals

could not determine whether this dispute would be covered by the

CAB order.

l6a

the Board’s labor protective order, and should there-

fore, instead, be resolved by the procedures set forth

in that order...

473 F.2d at 559-60.

The opinion of the CAB approving the merger of North-

east into Delta contains, in Appendix I, numerous labor

protective provisions. Section three of that Appendix

provides:

Insofar as the merger affects the seniority rights of

the carriers’ employees, provisions shall be made for

the integration of seniority lists in a fair and equitable

manner, including, where applicable, agreement

through collective bargaining between the carriers and

the representatives of the employees affected. In the

event of failure to agree, the dispute may be submitted

by either party for adjustment in accordance with

section 13.

Section 13 provides a mechanism for submitting such dis-

putes to the National Mediation Board. The order accom-

panying the merger opinion provides, in section 2(g), that

‘‘Delta shall be subject to the labor protective conditions

set forth in Appendix I.’’ Section 4 of that order pro-

vides: ‘‘ Jurisdiction is hereby reserved (1) to make such

amendments, modifications, and additions to the labor pro-

tective conditions imposed by paragraphs 2(g) and 2(h)

above as the circumstances may require... .’’

The Union seek an order from this court directing Delta

to negotiate with the Union regarding the seniority rights

of the employees it claims to represent. The subject mat-

ter of the request relief is explicitly covered by the order

and opinion of the CAB approving the merger. The power

of the CAB to issue such an order is well-established.

Kent v. CAB, 204 F.2d 263 (2d Cir. 1953), cert. denied, 346

U.S. 826 (195 ). That the CAB has exclusive jurisdiction

17a

over disputes covered by the merger order is equally well-

established. See, e.g., American Airlines, Inc. v. CAB,

445 F.2d 891, 895 (2d Cir. 1971), cert. denied, 404 U.S. 1015

(1972); Chaudoin v. Air Line Pilots Association, 6 FEP

107 (D.D.C. 1973) ; Master Executive Council v. O’ Donnell,

81 L.R.R.M. 2731 (D.D.C. 1972).

The Union has asserted that this jurisdictional limita-

tion is not applicable when the relief sought is supple-

mentary to the CAB order. This observation, while true

generally, has no application to this ease. The seniority

rights of the employees represented by the Union is ex-

plicitly covered by the merger order. That order provides

several mechanisms that will afford plaintiff the relief that

it seeks. Even if the explicit provisions prove unsatis-

factory, the CAB has retained jurisdiction to modify or

amend those provisions. The CAB is the appropriate

agency to decide these claims. Insofar as plaintiffs seek

to challenge the CAB order, it must be challenged by a

statutory petition for review pursuant to 49 U.S.C. § 1486

and not by a collateral lawsuit such as this.

Since this court is without jurisdiction over the subject

matter of this suit, the complaint must be dismissed.

/3/ J. 1. Tauro

United States District Judge

APPENDIX F

Statutory Provisions Involved

19a

Statutory Provisions Involved

A. Railway Labor Act

Section 2, 35 U.S.C. § 152, provides in pertinent part:

First. It shall be the duty of all carriers, their offi-

cers, agents, and employees to exert every reasonable

effort to make and maintain agreements concerning

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

settle all disputes, whether arising out of the applica-

tion of such agreements or otherwise, in order to avoid

any interruption to commerce or to the operation of

any carrier growing out of any dispute between the

carrier and the employees thereof.

Second. All disputes between a carrier or carriers

and its or their employees shall be considered, and, if

possible, decided, with all expedition, in conference

between representatives designated and authorized so

to confer, respectively, by the carrier or carriers and

by the employees thereof interested in the dispute.

Fourth. Employees shall have 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

shall be the representative of the craft or class for the

purposes of this Act... .

B. Federal Aviation Act of 1958

Section 401(k) (4), 49 U.S.C. § 1371(k) (4) provides:

It shall be a condition upon the holding of a certifi-

cate by any air carrier that such carrier shall comply

with sections 181-188 of Title 45.

Section 408, 49 U.S.C. § 1378, provides in pertinent part:

(b) Any person seeking approval of a consolidation,

merger, purchase, lease, operating contract, or acqui-

sition of control, specified in subsection (a) of this sec-

tion, shall present an application to the Board, and

thereupon the Board shall notify the persons involved

in the consolidation, merger, purchase, lease, operat-

ing contract, or acquisition of control, and other per-

20a

sons known to have a substantial interest in the pro-

ceeding, of the time and place of a public hearing.

Unless, after such hearing, the Board finds that the

consolidation, merger, purchase, lease, operating con-

tract, or acquisition of control will not be consistent

with the public interest or that the conditions of this

section will not be fulfilled, it shall by order approve

such consolidation, merger, purchase, lease, operating

contract, or acquisition of control will not be con-

sistent with the public interest or that the conditions

of this section will not be fulfilled, it shall by order

approve such consolidation, merger, purchase, lease,

operating contract, or acquisition of control, upon

such terms and conditions as it shall find to be just

and reasonable and with such modifications as it may

prescribe ....

Section 1106, 49 U.S.C. § 1506, provides:

Nothing contained in this chapter shall in any way

abridge or alter the remedies now existing at common

law or by statute, but the provisions of this chapter

are in addition to such remedies.

~