Petition — International Association of Machinists & Aerospace Workers v. Compagnie Nationale Air France

IN THE

Supreme Court of the United States ~~ ——~

Ocroser Term, 1977

No. eS -j » ‘3 4

a

INTERNATIONAL ASSOCIATION OF MACHINISTS

& Arrospace Workers, AFL-CIO,

Petitioners,

—against—

CompaGNig NATIONALE Air FRANCE,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Prato E. Parrps

Machinists Building

1300 Connecticut Ave., N.W.

Washington, D.C. 20036

Kevin P. Quitu

Chase Manhattan Bank Bldg.

29-27 41st Ave.

L.1L.C., New York 11101

Attorneys for Petitioners

TABLE OF CONTENTS

Page

Opinions Below 1

Jurisdiction 2

Questions Presented 2

Statutes Involved 3,4

Statement of Case 4

REasons for Granting the Writ - 8

1. The Jurisdiction of the Federal Courts

and the National Mediation Board Should Be

Defined As There Appears to Be A Conflict

Between The Decisions Of Different Courts of

Appeal. 8

2. The Case Raises An Important Question

Under The Railway Labor Act Which Should

Be Settled By This Court 9

Conclusion 12

TABLE OF AUTHORITIES

Page

Cases:

Brotherhood of Railroad Trainmen v.

Central of Georgia Railroad Company

305 F.2a 605 (Sth Cir. 1962) 10

Burlington Northern, Inc. v. American

Railway Supervisors Association, 503 F.2d

58 (7th Cir. 1974) (per curiam) cert.

denied 421 U.S. 975 (1975) 8,9,10

International Brotherhood of Teamsters v.

Brotherhood of Railway, Airline and Steamship

Clerks, 402 F2d 196 (D.C. Cir.) cert. denied,

393 U.S. 848 (1968) 11

Texas & N.O.R.Co. v. Brotherhood of Railway

and Steamship Clerks, 281 U.S 548 (1930) 10

Westchester Lodge 2186, Brotherhood of

Railway and Steamship Clerks v. Railway

Express Agency, Inc., 329 F. ed 748

(2a Cir. 1964) 10

Statutes:

Railway Labor Act

45 U.S.C. &151 et. seq. Section 2, passim

Fourth 45 U.S.C. &152 11

Section 2, Ninth, 45 U.S.C. &152 9,10

INDEX TO APPENDICES

Appendix A. 0 ‘as

x A, ral Disposition of A

—— Court of Appeals oena’

ii ll p.la-lba

Appendix B. Order of Uni

ted States

of Appeals, Second Circuit. st st Pp. 5a-6a

Appendix C. Memorandum 0

: rder of the

District Court, Southern District of

New York.......

Cece eerrercsercece se cADDP, Dp. Ta-28a

—— D. Air France Telegram of May 4

ticehpbho opt thintentt er ,

seeeeeee ADD, p.29a-30a

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1977

No. *eeeee

INTERNATIONAL ASSOCIATION OF MACHINISTS

& AEROSPACE WORKERS, AFL-CIO,

Petitioners,

- against -

COMPAGNIE NATIONALE AIR FRANCE,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT.

Petitioner prays for a writ of certiorari to

review the judgment of the United States Court of

Appeals for the Second Circuit in this case.

OPINIONS BELOW.

The opinion of the court of appeals (App.la-

4a) is not officially reported. The decision and

order of the District Court for the Southern

District (Tenney,J) is reported at 433 F. a 1087

(App. 7a-29a)

JURISDICTION

The judgment of the court of appeals (App. 5a,

6a) was entered on December 6, 1977. The jurisdict-

ion of this Court is invoked under 28 USC&1254(1)

and in accordance with Supreme Court Rule 19.

QUESTIONS PRESENTED

1. Whether a complaint in the United States

District Court specifically alleging Railway Labor

Act (RLA) &45 U.S.C. &l5let. seg., violations by an

air carrier should be dismissed as a representat-

ional dispute within the jurisdiction of the Nation-

al Mediation Board (NMB) when there is no petition

pending at the NMB nor any one else claiming to be

the representative and there is a contract between

the carrier and a union which recognizes the union

as the collective bargaining representative?

2. Whether a voluntary agreement covering

less than a class or craft which recognizes a

collective bargaining representative is subject

to the provisions of the RLA.

3. Can a carrier exclude itself from cov-

erage of the RLA by private agreement?

STATUTES INVOLVED

The Railway Labor Act 45 U.S.C. &151 et. sea.,

specifically Section 2, Fourth provides:

"Fourth. Employees shall have the right to

organize and bargain collectively through represen-

tatives 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. No

carrier, its officers or agents, shall deny or in

any way question the right of its employees to

doin, organize, or assist in organizing the labor

organization of their choice, and it shall be un-

lawful for any carrier to interfere in any way with

the organization of its employees, or to use the

funds of the carricr in maintaining or assisting or

contributing to any labor organization, labor rep-

resentative, or other agency of collective bar-

gaining, or in performing any work therefor, or

to influence or coerce employees in an effort to

induce them to join or remain or not to join or re-

main members of any labor organization or to de-

duct from the wages of employees any dues, fees,

assessments, or other contributions payable to

labor organizations, or to collect or to assist in

the collection of any such dues, fees, assessments,

or other contributions: Provided, That nothing in

this Act shall be construed to prohibit a carrier

from permitting an employee, individually, or local

representatives of employees from conferring with

management during working hours without loss of time,

or to prohibit a carrier from furnishing free

transportation to its employees while engaged in

the business of a labor organization.

Section 2, Ninth provides:

"Ninth. If any dispute shall arise among a

carrier's employees as to who are the representatives

of such employees designated and authorized in accor-

dance with the requirements of this Act, it shall

be the duty of the Mediation Board, upon request of

either party to the dispute, tv investigate such

dispute and to certify to both parties, in writing,

within thirty days after the receipt of the in-

vocation of its services, the name or names of the

individuals or organizations that have been design-

ated and authorized to represent the employees in-

volved in the dispute, and certify the same to the

carrier. Upon receipt of such certification the

carrier shall treat with the representative so

certified as the representative of the craft or

class for the purposes of this Act. In such an

investigation, the Mediation Board shall be

authorized to take a secret ballot of the em-

ployees involved, or to utilize any other appro-

priate method of ascertaining the names of their

duly designated and authorized representatives in

such manner as shall insure the choice of repre-

sentatives by the employees witaout interference,

influence, or coercion exercised by the carrier.

In the conduct of any election for the purposes

herein indicated the Board shall designate who

may participate in the election. The Board shall

have access to and have power to make copies of the

books and records of the carriers to obtain and

utilize such information as may be deemed necess-

ary by it to carry out the purposes and provisions

of this paragraph.

STATEMENT OF CASE

The issue on this appeal is the dismissal cof

the complaint in which the International Assoc-

iation of Machinists and Aerospace Workers, Afl-

Cio. (hereinafter the IAM & AW) sought a prelim-

inary injunction against Compagnie Nationale Air

France (Air France) for violations of the Railway

Labor Act (RAL) && 2,6.

The IAM & AW is seeking to enjoin Air France

from unilaterally terminating a labor contract be-

tween the IAM & AW and Air France, from dealing

with anyone other than IAM & AW as the exclusive

representative of the cargo agents employed at

Air France, and from violating the terms and

obligations of the contract in effect between

the IAM & AW and Air France covering the cargo

agents.

The IAM & AW brought the action ty way of

an Order to Show Cause with a Temporary Restrain-

ing Order, Summons and Complaint. After a pre-

liminary hearing before the Honorable Charles L.

Brieant, U.S. District Court Judge for the

Southern District of New York, in which Judge

Brieant found that the equities were decidedly

in favor of the IAM & AW, Judge Brieant signed

the Order to Show Cause with the Temporary Re-

straining Order requiring Air France to recog-

nize and treat with IAM & AW as the representat-

ive of the cargo agents, to deduct union dues

and to honor the terms and conditions of the

contract which had been in effect.

On the return day, June 24, 1977,

Honorable Charles H. Tenney, U.S. District Court

Judge for the Southern District of New York, had

a limited hearing which he adjourned until the

following week. No further hearing was ever

held and Judge Tenney issued his decision dis-

missing the case for lack of jurisdiction on the

ground the issue was a representational question

and thus a major dispute within the exclusive

jurisdiction of the National Mediation Board

(NMB)(App. 7a-28a) A Motion by IAM & AW to re-

argue the decision was denied by the Court in an

endorsed order,

The Court of Appeals for the Second Circuit

heard the appeal on December 6, 1977 and rendered

an oral disposition in which it affirmed the District

Court with two corrections. (App.le-la)

FACTUAL BACKGROUND

The IAM & AW has been the exclusive re-

presentative of the cargo agents at Air France for

25 years. During this time the parties have entered

into many successive contracts covering the cargo

agents. During this time the NMB has assisted in

settling labor contracts, the most recent being the

1974 settlement of a four months strike.

On January 3, 1977, a three year contract was

signed between the parties covering the period until

September 30, 1979. The terms of the contract were

in force until May 4, 1977, a period of five months,

when Air France sent a telegram to Wally Haber,

General Chairman IAM & AW which stated that as of

May 4, 1977, the contract had been terminated under

Article XVII(q), Air France would no longer recog-

nize the IAM & AW as the bargaining agent and

would no longer deduct union dues.

Article XVII (q) of the contract states:

"Notwithstanding the "Effective Date and

Duration" provisions of this Agreement and any re-

ferences to the Railway Labor Act in this Agree-

ment, if a decision of the National Mediation

Board permits the certification of a representat-

ive of employees of any airline who perform

functions analogous to those being performed by the

employees covered by this Agreement in a group other

than the class or craft of which the NMB has histor-

ically determined such employees to be a part, then

this Agreement will terminate."

Air France posted & notice at the cargo facilities

on the same day ordering the cargo agents to attend

a meeting. At the meeting Air France officials,

Roland J. Hawkins, Vice-President and General

Manager, Eugene Carrara, Personnel Services Manager

and John Devlin, Airport Cargo Manager, informed

the cargo agents that the contract was cancelled,

6

the IAM & AW no longer represented them and Air

France would not check off the IAM & AW dues. The

cargo agents were ordered to select three represen-

tatives from amongst the cargo agents to meet with

Air France to negotiate over terms and working

conditions. Similiar meetings took place at Air

France's other stations in the United States.

Since May 4, 1977, Air France has met with certain

employees and has changed the terms and working

conditions. Since May 4, 1977, Air France refuses

to treat with the IAM & AW as the representative of

the cargo agents and has refused to check off dues.

Air France stated in the telegram of May 4,

that it was basing its actions on a decision by

the NMB in United Airlines, Inc., R-4550 which

involved employees who do different work than the

cargo agents at Air France. At no time during

this series of events has Air France filed a

Section 6 notice as required by the RLA.

When Wally Haber, General Chairman, IAM &

AW, tried to have the issue submitted to arbit-

ration and the system board of adjustment, Eugene

Carrarra, Personnel Manager and Officer in charge

of labor contracts at Air France, refused to do so.

As Air France would not meet to discuss the re-

sulution of the issues as required by RLA &2,

Second the IAM & AW commenced this action to en-

Join Air France violating the RLA.

The complaint specifically pleaded the violat-

ions of the RLA inclusive of all the actions taken

by Air France from the telegram of May 4, to the

changing of the terms of employment.

REASONS THE WRIT SHOULD BE GRANTED

1. THE JURISDICTION OF THE FEDERAL COURTS AND THE

NMB SHOULD BE DEFINED AS THERE APPEARS TO BE A

CONFLICT BETWEEN THE DECISIONS OF DIFFERENT COURTS

OF APPEAL.

The crux of the decision of the District

Court, which was affirmed by the Court of Appeals,

Second Circuit, was stated (App. 27a): "This

Court concludes that the issue here is really one

or representation, a subject which Congress has

given the Mediation Board the duty to determine.”

The complaint specifically alleged that the

carrier had violated the RLA by its actions and

sought injunctive relief restoring the parties to

the same status and conditions as had been in

effect prior to the decision of Air France to

terminate the contract. The complaint sought to

continue the contract which had been signed on

January 3, 1977 and was by its terms to run until

September 30, 1979. Air France had voluntarily

recognized the IAM & AW as the collective bar-

gaining representative for the cargo agents as it

had done for 25 years. During the period from the

signing of the contract on January 3, 1977 until

May 4, 1977, when Air France sent the telegram

(App. 29a) that the contract was cancelled, no one

else claimed to be the collective bargaining repre-

sentative nor did anyone file a petition with the

NMB asking for an election to determine the repre-

sentative. Under virtually similiar circumstances

in Burlington Northern Inc. v. American Railway

Supervisors Association, 503 F. 2a 58 (7th Cir.

1974), cert. denied, 421 U.S. 975 (1975) the Court

addressed the same issue of jurisdiction as follows:

"Before reaching the merits we must consider

the threshold issue of whether this Court has

jurisdiction to decide the questions presented in

the cross-appeals. The District Court held that

the controversy between plaintiff and ARSA was in

essence a Railway Labor Act representation dis-

pute, the resolution of which must be left to the

NMB, and on this ground, dismissed both the com-

plaint and the counterclaim. We disagree with the

District Court on this point. In our view, the

dispute before us is not one under 45 U.S.C.

&152 Ninth, because no employee or other union has

challenged ARSA's certification."

It is section 2, Ninth RLA on which the

District Court based its decision of giving the

NMB jurisdiction in the instant case. As in the

Burlington Northern case, there was no challenge to

the IAM & AW representation status. The holding in

the Burlington Northern case should apply to the

facts of this case, thus jurisdiction should not

be with the NMB but rather in the Federal Courts.

In the oral disposition of this matter, the Court

of appeals distinguished this case from the Burling-

ton Northern case on the grounds that the Burling-

ton Northern case was based on a Merger Agreement

and the Interstate Commerce Commission actions.

(App. 2a, 3a). In the Burlington Northern case

the Court took into consideration both of these

grounds but proceeded to further hold that these

two factors were not contrary to the RLA. The

Court stated:

"The Employees Merger Protection Agreement was

a condition of the ICC approval of the merger,

authorized by Section 5(2)(f) of the Interstate

Commerce Act, 49 U.S.C. &5(2)(f). The agreement is

not inconsistent with any provision of the RAilway

Labor Act... 000"

The Court's holding in the Burlington Northern

case, although involving other considerations, is re-

9

levant to the facts in this case as to the Seventh

Circuit's interpretation of Section 2, Ninth of the

RLA. Under the Burlington Northern decision the

NMB would not have jurisdiction and the relief sought

for violations of the RLA would properly be before

the Federal Courts as established in Texas & NORR

Co. v. Brotherhood of Railway and Steamship Clerks,

281 U.S. 548 (1930), Brotherhood of RR Trainmen v.

Central of Ga. Ry Co., 305 F. 2d 605 (5th Cir. 1962),

Westchester Lodge 2106, Brotherhood of Railway and

Steamship Clerks v. Railway Express Agency, Inc.,

329 F 2a 748 (2nd Cir. 1964), The holding of the

Second Circuit is contrary and would give jurisdict-

ion to the NMB and exclude the Federal Courts. The

issue should be resolved so that uniformity will

prevail regardless of the Court of Appeals in which

this issue would arise.

@. THE CASE RAISES AN IMPORTANT QUESTION UNDER

THE RAILWAY LABOR ACT WHICH SHOULD BE SETTLED BY THIS

COURT.

The issue of whether a voluntary agreement which

recognizes collective bargaining representative of less

than a class or craft unit is within the coverage of

the RLA is of substantial consequence. There are

great numbers of contracts entered into by voluntary

recognition agreements of representatives of less

than class or craft units covering thousands of em-

ployees in all parts of the United States. The NMB

has proffered its services and been party to the

settlement of labor disputes in these situations pur-

Ssuant to the RLA.

Air France first raised the issue in the Court of

Appeals. It is Air France's position that because

10

the language in the RLA &2 - Fourth refers to repre-

sentatives of the "class or craft" that any unit

less than a craft or class, regardless of whether

there is a voluntary recognition agreement, is not

covered by the RLA. Air France cites as authority

for its position the decision of the District of

Columbia Court of Appeals in International Brother-

hood of Railway, Airline and Steamship Clerks, 402

F. 24 196 (D.C. Cir.), cert. denied, 393 U.S. 848

(1968). that certification by the NMB that employees

had no representative as the result of an election

to carry out negotiations contemplated by the RLA

and that the employment relationship of the parties

was not governed by the RLA.

The issue is critical because in situations

where there are such circumstances then neither the

carrier nor the employee representative would have

a right to invoke the jurisdiction of the Federal

Courts or the NMB when labor disputes arose and

would be left to their respective self help resources.

The unions would have to decide at the end of each

contract to file a petition for an entire craft or

class in order to safeguard their status or take the

chance that the carrier would continue to negotiate

with them although without recourse to the RLA. If

Air France is correct entirely different employment

relationship then presently exist will come into ex-

istence as the issue of representational status will

be constantly hanging over negotiations between the

parties. This situation would create turmoil at both

the NMB and the bargaining table.

11

CONCLUSION

For the foregoing reasons,this petition

should be granted and a writ of certiorari

issue to review the decision and judgment of

the Court of Appeals for the Second Circuit.

Respectfully submitted,

Plato E.Papps

Machinists Building

Washington,D.C. 20036

Kevin P.Quill

Chase Manhattan Bank Bldg.

29-27 4ist Avenue

Long Island City,N.Y.11101

Attorneys for Petitioners

February 24,1978

le

Appendices

—

>

\

APPENDIX A

UNITED STATES COURT OF APPEALS

For The Second Circuit

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

INTERNATIONAL ASSOCIATION OF

MACHINISTS & AEROSPACE WORKERS,

Appellants,

-against- Dkt. No.

77-7430

COMPAGNIE NATIONALE AIR

FRANCE ,

Appellee.

Before:

HON. WALTER R. MANSFIELD,

J. EDWARD LUMBARD and

J. JOSEPH SMITH, Circuit Judges.

New York, N.Y., December 6, 1977

Statement made by the court at dis-

position of appeal in open court.

JUDGE MANSFIELD:

Gentlemen, we have read the record and

reviewed it. We do not believe that any-

thing need be added to what Judgé Tenney

has written. You've presented your case

very well, Mr. Quill, but after reading

and reviewing the briefs, we are satisfied

that the judgment of the district court

should be affirmed, essentially for the

reasons stated by Judge Tenney, with one

or two exceptions. We view this as basi-

cally a representation dispute which should

be within the primary jurisdiction of the

National Mediation Board. We view the

Burlington Northern case as clearly dis-

tinguishable for the reason that the labor

contract enforced by the court, including

recognition of the certified union, had

been imposed upon the carrier by the ICC

as a precondition to the Merger Agreement.

2a

Thus jurisdiction was based on both the

Merger Agreement and the ICC's action.

No such agency action is found here.

Now there are one or two things in

Judge Tenney's opinion that we do not

necessarily accept. One of those is the

statement that Article XVII(q) was inserted

in the contract in order to get around some

prior rulings of the National Mediation

Board, which denied certification of cargo

agents as a class or craft of employees.

That we do not accept as the reason for the

clause. Secondly, I think he inadvertently

referred to the representational question

as a "major,'' as distinguished from a

"minor," dispute within the jurisdiction

of the National Mediation Board. We would

classify it as a representational dispute.

3a

With those qualifications, we affirm,

essentially for the reasons stated by APPENDIX B

Judge Tenney. Thank you. UNITED STATES COURT OF APPEALS

Second Circuit

At a Stated Term of the United States

Court of Appeals for the Second Circuit,

held at the United States Courthouse in

the City of New York, on the sixth day of

December, one thousand nine hundred and

seventy-seven.

Present: HON. J. EDWARD LUMBARD

HON. J. JOSEPH SMITH

HON. WALTER R. MANSFIELD

Circuit Judges

INTERNATIONAL ASSOCIATION OF

MACHINISTS & AEROSPACE WORKERS,

Plaintiffs-Appellants,

v. 77-7430

COMPAGNIE NATIONALE AIR

FRANCE ,

ba Defendant-Appellee.

ee

Appeal from the United States District

Court for the Southern District of New

York.

This cause came on to be heard on the

transcript of record from the United

States District Court for the Southern

District of New York, and was argued by

counsel.

ON CONSIDERATION WHEREOF, it is now

hereby ordered, adjudged, and decreed that

the order of said District Court be and it

hereby is affirmed with costs to be taxed

against the appellant.

A. DANIEL FUSARO,

Clerk

by

ARTHUR HELLER,

Deputy Clerk

6a

APPENDIX C

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

INTERNATIONAL ASSOCIATION OF

MACHINISTS & AEROSPACE WORKERS,

AFL-CIO (IAM), et al,

Plaintiff,

-against- 77 Civ.

2913 (CHT)

COMPAGNIE NATIONALE AIR

FRANCE, MEMORANDUM

Defendant. #46115

APPEARANCES

For the Plaintiff: KEVIN P. QUILL, ESQ.

Chase Manhattan Bank

Building

29-27 41st Avenue

Long Island City,

New York 11101

For the Defendant: POLETTI FREIDIN

PRASHKER FELDMAN &

GARTNER

1185 Avenue of the

Americas

New York, N.Y. 10036

Of Counsel: HERBERT PRASHKER, ESQ.

‘ EDWARD A. BRILL, ESQ.

JEFFREY G. STEINBERG,

ESQ.

7a

TENNEY, J.

Plaintiff International Association of

Machinists and Aerospace Workers (''IAM")

has applied for a preliminary injunction

enjoining defendant Compagnie Nationale

Air France ("Air France") from unilaterally

cancelling the previously effective collec-

tive bargaining agreement of January 3,

1977 and from ceasing to recognize plain-

tiff as the legal representative of the

cargo agents at Air France. After a brief

hearing before Judge Brieant of this court

on June 15, 1977, a temporary restraining

order was signed requiring the parties to

operate under the January 3 agreement. On

June 24, 1977, the parties appeared in

court to argue the plaintiff's motion for

a preliminary injunction and the Court con-

tinued the temporary restraining order un-

til it could determine if jurisdiction was

8a

proper to entertain the action for injunc-

tive relief. For the reasons stated be-

low, plaintiff's motion is denied and the

case is dismissed.

The relevant details are as follows.

Plaintiff is a labor union which has been

"the exclusive bargaining representative

for the cargo agents and lead cargo agents

employed by Air France since 1950."" Com-

plaint 4 5. Airline employees performing

cargo agent duties have "since 1947, his-

torically been included in an overall

‘craft or class' of Clerical, Office, Fleet

an Passenger Service employees.’ Carrara

Affidavit, sworn to June 23, 1977 at 3.

Defendant Air France contends that the

cargo agents wish to separate from the IAM

and seek to be represented as a separate

group by the International Brotherhoods of

Teamsters ("IBT"). The Railway Labor Act

9a

("RLA"), 45 U.S.C. §§ 151-88, provides a

procedure by which airline employees select

a labor organization as their collective

bargaining representative, provided that

such representative has been so designated

by a majority of the employees in a "craft

or class" of airline employees and recog-

nized by the National Mediation Board

(''NMB"). RLA § 2, Fourth and Ninth, 45

U.S.C. § 152, Fourth and Ninth.

On January 3, 1977, Air France and IAM

agreed to a new collective bargaining

contract, which included, inter alia, the

following unique provision in Article XVII

(q):

"Notwithstanding the ‘Effective Date

and Duration’ provisions of this Agree-

ment, and any reference to the Railway

Labor Act in the Agreement, if «

10a

decision of the National Mediation

Board permits the certification of a

representative of employees of any air-

line who performs functions analogous

to those being performed by the em-

ployees covered by this Agreement in a

group other than the class or craft of

which the National Mediation Board has

historically determined such employees

to be a part, then this agreement will

terminate."

On May 4, 1977, Air France notified IAM

of an NMB decision of March 23, 1977 which

recognized as a separate bargaining unit

United Air Lines freight agents. See NMB

Case No. R-4550, annexed as Exhibit A to

Affidavit of Eugene Carrara, sworn to June

20, 1977. Air France construed this de-

cision as permitting certification of a

lla

collective bargaining representative for

United Air Lines employees who perform

functions analogous to those performed by

Air France's cargo agents. Air France

therefore informed IAM that the January 3

agreement was terminated in accordance with

the provisions of Article XVII (q).

Five weeks later IAM institited this ac-

tion. It contends that Air France's action

in unilaterally ceasing performance under

the agreement was unlawful and in violation

of that agreement and sections 2 and 6 of

the RLA. Complaint 44 8-12. It is undis-

puted that neither Article XVII (q) nor any

other term of the contract prescribes a

method or procedure for determining whether

an NMB decision triggers Article XVII (4).

IAM further contends that even if Air

France's action is deemed consistent with

12a

Article XVII (q), that article itself must

be declared illegal and in violation of

the RLA since it "was forced into the con-

tract by Air France, [and] it is clearly

an attempt to by-pass legislation passed

by Congress and is in violation of public

policy and thus is null and void." Id.

{7 12. IAM argues that Air France's decis-

ion to no longer recognize IAM as the rep-

resentative of the cargo agents "unilater-

ally changed the terms and working condi-

tions of the cargo employees in violation

of Section 6 of the Railway Labor Act,"

id. 4 10, and that "Air France is attempt-

ing to use the United Airlines determina-

tion as a subterfuge to eliminate the

[IAM] as the representative of the cargo

agents in violation of Section 2 of the

Railway Labor Act." Id. § 11. Air France

argues in opposition that it did not act

13a

unilaterally to change the contract but

that its termination of the contract was

itself an act authorized by Article XVII

(q) of the contract. Air France also as-

serts that the article was legitimately

bargained for and is proper and lawful.

IAM requests the Court to issue an order

enjoining Air France from interfering with

the representation of its employees by the

IAM and declaring the January 3 contract

in full force. Id. 4% 15-16.

In essence, the plaintiff is asking the

Court to construe Article XVII (q) to de-

termine whether Air France's actions com-

plied with the contract and with the Rail-

way Labor Act. It is well-settled that

Congress established the act to provide

explicit procedures for the settlement of

labor disputes. The specific procedure to

l4a

be used in any given dispute depends on whe-

ther that dispute is considered "major" or

"minor". 45 U.S.C. §§ 151 et seq. The

Supreme Court has defined these terms as

follows:

"(Major disputes relate] to disputes

over the formation of collective agree-

ments or efforts to secure them. They

arise where there is no such agreement

or where it is sought to change the

terms of one, and therefore the issue

is not whether an existing agreement

controls the controversy. They look to

the acquisition of rights for the future,

not to assertion of rights claimed to

have vested in the past.

"(Minor disputes contemplate] the ex-

istence of a collective agreement al-

ready concluded or, at any rate, a

situation in which no effort is made to

bring about a formal change in terms or

l5a

to create a new one. The dispute re- interpretation as by the substitution

lates either to the meaning or proper of new agreements. As Judge Waterman

application of a particular provision observed for this court in Rutland Rail-

with reference to a specific situation wav Corp. v. Brotherhood of Locomotive

or to an omitted case." Elgin, Joliet Engineers ... ‘the difference, on the

& Eastern Railway Co. v. Burley, 325 one hand, between the interpretation

U.S. 711, 723 (1945). and the application of an existing

The United States Court of Appeals for agreement, and, on the other hand, a

the Second Circuit has further explicated change in an original intended basis of

. : . agr i :

the distinction between major and minor greement is often a question of degree

307 F.2d at 33."' Westchester Lodge

disputes.

2186, Brotherhood of Railroad Clerks v.

"Distinguishing between a minor dis- | Railway Express Agency, Inc., 329 F.2d

pute (interpretation and application of 748, 752 (2d Cir. 1964).

an existing agreement) and a major @is-

pute (formation or alteration of an If the quarrel between the parties is whe-

agreement) can sometines be quite dif- ther the terms of the collective bargaining

ficult, for there are areas in which agreement of January 3 has been complied

the line seems rather indistinct. Agree- with, then it would be characterized as a

ments are ofttimes changed as much by minor dispute. Such disputes fall within

l6a 17a

the exclusive jurisdiction of the National

Railroad Adjustment Board, which has autho-

rized local System Boards of Adjustment to

consider these disputes under section 204

of the RLA, 45 U.S.C. § 184. Elgin, Joliet

& Eastern Railway Co. v. Burley, supra;

United Transportation Union v. Penn Central

Transportation Co., 505 F.2d 542, 543-44

(3d Cir. 1974); Local 1477, United Trans-

portation Union v. Baker, 482 F.2d 228,

230 (6th Cir. 1973); International Associa-

tion of Machinists and Aerospace Workers v.

Northeast Airlines, Inc., 473 F.2d 549, 554

(lst Cir.), cert. denied, 409 U.S. 845

(1972); Airlines Stewards & Stewardesses

Association, Local 550 v. Caribbean

Atlantic Airlines, 412 F.2d 289, 291 (lst

Cir. 1969); Ruby v. American Airlines, Inc.,

323 F.2d 248 (2d Cir. 1963), cert. denied,

376 U.S. 913 (1964); District 100,

18a

International Association of Machinists and

Aerospace Workers v. Compagnie Nationale

Air France, 414 F.Supp. 538, 542 (E.D.N.Y.

1976); Deboles v. Trans World Airlines,

350 F.Supp. 1274, 1283-84 (E.D. Pa. 1972).

Therefore, this Court is without authority

to interpret the terms of the collective

bargaining agreement and determine whether

Air France's actions are in lawful com-

pliance with the agreement. Although the

section primarily contemplates resolution

of employee grievances, its literal mandate

must be adhered to, and it is irrelevant

that the dispute in this case is between a

union and an employer rather than an em-

ployer and an employee. International

Association of Machinists and Aerospace

Workers v. Northeast Airlines, Inc., supra,

473 F.2d at 555; Deboles v. Trans World

Airlines, supra, 350 F.Supp. at 1284.

19a

A federal court may, however, issue an

injunction to preserve the status quo in

order to protect the jurisdiction of the

Adjustment Board when a dispute has been

submitted for consideration pursuant to

the procedures outlined in 45 U.S.C. § 184.

See Brotherhood of Locomotive Engineers v.

Louisville & Nashville Railroad Co., 373

U.S. 33 (1963); United Transportation Union

v. Penn Central Transportation Co., supra,

505 F.2d at 545; Westchester Lodge 2186,

Brotherhood of Railroad Clerks v. Railway

Express Agency, Inc., supra, 329 F.Supp.

at 753.

Because neither party has exhausted ap-

propriate remedies by following the griev-

ance procedure outlined in Article XIV of

the collective bargaining agreement and

submitting the dispute to the System Board

of Adjustment, this Court cannot issue an

20a

injunction to protect the exclusive juris-

diction of a forum whose authority has not

been invoked. United Transportation Union

v. Penn Central Transportation Co., supra,

305 F.2d at 545; Detroit & Toledo Shore

Line Railroad Co. v. United Transportation

Union, 413 F.Supp. 681, 685 (E.D. Mich.

1976).

Plaintiff also challenges the legality of

Article XVII (q) of the contract in light

of the RLA. This claim, however, does not

depend upon an interpretation of the terms

of the contract and is therefore not a

minor dispute within the jurisdiction of

the System Board of Adjustment. IAM claims

that the article is a subterfuge intended

to permit Air France to change the terms of

the January 3 contract. Characterized thus,

the dispute would fall within the category

2la

of major dispute. Plaintiff claims that

Article XVII (q)

"is illegal and in violation of the

Railway Labor Act. The procedure for

determining who is the representative

of employees under the Railway Labor

Act are [sic] specified in the Act.

The clause, which was forced into the

contract by Air France, is clearly

an attempt to by-pass [this pro-

cedure].'' Complaint q 12.

Jurisdiction to consider major disputes

lies with the National Mediation Board un-

der section 2 of the RLA, 45 U.S.C. § 152.

Brotherhood of Railroad Trainmen v. Jack-

sonville Terminal Co., 394 U.S. 369, 378

(1969); Westchester Lodge 2186 v. Railway

Express Agency, Inc., supra; Brotherhood

of Railway & S.S. Clerks v. United Air

22a

Lines, Inc., 325 F.2d 576 (6th Cir. 1963),

cert. dismissed, 379 U.S. 26 (1964).

Plaintiff claims that Article XVII (q) is

illegal and therefore that Air France's

actions constitute an alteration of the

existing contract. As well as considering

issues relating to changes in existing

contracts or formation of new ones, the NMB

has been granted primary authority over is-

sues of representation of employees in the

bargaining process. 45 U.S.C. § 152, Ninth.

Brotherhood of Local Fireman & Enginemen v.

Seaboard Coast Line Railroad Co., 413 F.2d

19 (5th Cir.), cert. denied, 396 U.S. 963

(1969); Howard v. St. Louis-San Francisco

Railway Co., 244 F.Supp. 1008 (D.C. Mo.

(1965), aff'd. 361 F.2d 905 (8th Cir.),

cert. denied, 385 U.S. 986 (1966); Ruby v.

American Airlines, Inc., supra; Dones v.

Eastern Air Lines, Inc., 408 F.Supp. 1044,

1048 (D.P.R. 1975).

23a

The United States Court of Appeals for

the First Circuit has expounded upon this

principle in a case calling for a deter-

mination of the representative of airline

employees. The plaintiff union was the

bargaining representative of certain

Northeast Airline employees prior to the

merger of Northeast and Delta Air Lines.

The merger was accomplished under a Civil

Aeronautics Board order which specifically

affected certain working conditions.

Plaintiff claimed that Northeast should

have negotiated with it regarding the ef-

fects of such merger terms. The court

explained:

"Where there is no real question about

whether a union is the legitimate rep-

resentative of an airline's employees,

the . . . function of deciding the

24a

extent of the duty to bargain rests

properly with the federal court .

"However, the duty to bargain imposed

by the Railway Labor Act is a duty to

bargain with a chosen representative

of the majority of the craft or class

of employees. At the very least, the

merger created real doubts about whe-

ther the plaintiffs represent the

majority of any Delta [Airlines] craft

or class of employees, and where there

is such doubt, federal courts leave

resolution of the dispute to the NMB."

International Association of Machinists

and Aerospace Workers v. Northeast

Airlines, Inc., 536 F.2d 975, 977 (lst

Cir.), cert. denied, 45 U.S.L.W. 3364

(U.S. Nov. 15, 1976) (citations

omitted).

25a

See also Detroit & Toledo Shore Line Rail-

road Co. v. United Transportation Union,

supra, 413 F.Supp. at 685.

The complaint in this case charges that

defendant acted in violation of the con-

tract and seeks a declaration of the con-

tract's vitality. The defendant's justifi-

cation of its actions as proper under the

contract would seem to categorize the dis-

pute as minor. Local 1477, United Trans-

portation Union v. Baker, supra, 482 F.2d

at 230; Rutland Railway v. Brotherhood of

Locomotive Engineers, 307 F.2d 21 (2d. Cir.

1962), cert. denied, 372 U.S. 954 (1963).

It is obvious, however, that the gravamen

of the complaint concerns IAM's continued

representation of Air France's cargo

agents--a major dispute within the primary

jurisdiction of the NMB. In fact. Air

26a

France admitted in court that Article XVII

(q) was inserted in the January 3 contract

in order to circumvent prior rulings of

the NMB which denied certification of cargo

agents as a class of employees to be rep-

resented by the IBT. ‘Transcript of June

24, 1977, at 14-15.

This Court concludes that the issue here

is really one of representation, "a sub-

ject which Congress has given the Media-

tion Board the duty to determine.'' Ruby

v. American Airlines, Inc., supra, 323 F.2d

at 254. Therefore it will not exercise

jurisdiction over the matter. Burlington

Northern Inc. v. American Railway Super-

visors Association, 503 F.2d 58 (7th Cir.

1974), cert. denied, 421 U.S. 975 (1975);

Brotherhood of Railway, Airline & Steam-

ship Clerks v. Pan American World Airways,

27a

Inc., 404 F.2d 938 (2d Cir. 1969); Aircraft

Mechanics Fraternal Association v. United

Airlines, Inc., 406 F.Supp. 492 (N.D. Cal.

1976). Nor will the Court exercise its dis-

cretion to issue an injunction to preserve

the status quo while the procedures for

settling the dispute are exhausted. This

refusal to grant the equitable relief re-

quested by the plaintiff is justified where

it does not appear that the party has pur-

sued those administrative remedies which

the injunction is intended to protect.

Accordingly, the plaintiff's motion is

denied and the action is dismissed.

So ordered.

Dated: New York, New York

July 1, 1977

/s/ Charles H. Tenney

oR Up

28a

Appendix D

Telegram of May 4, 1977

International Association of

Machinists and Aerospace Workers

8 Freer Street

Lynbrook, New York 11563

Attn: Mr. Wally Haber

By virtue of the decision of the National Mediation

Board Dated March 23, 1977 in United Airlines, Inc.,

R-4550, and Article XVII(q) of the agreement ,

effective October 1, 1976 between Compagnie Nationale

Air France and the International Association of

Machinists and Aerospace Workers (I.A.M. & A.W.)

representing cargo agents in the employ of Air

France. That agreement has been terminated. Such

termination applies to Article II(a) under which

Air France recognized the I.A.M. & A.W. as bar-

gaining agent for employees covered by the agree-

ment and article XIX (h) under which Air France

agreed to deduct union dues from the pay of employees

during the life of the agreement. Since the I.A.M.

& A.W. has not been certified as the representative

of these employees under the provisions of the

Railway Labor Act and its treatment as bargaining

agent for those employees has depended exclusively

on the voluntary recognition agreement embodied

in Article II(a), Air France now has no further

obligation to recognize the I.A.M. & A.W. as the

bargaining agent for the employees formerly covered

by the agreement. There since the agreement has

been terminated as described above, effective this

date the company will not voluntarily continue to

recognize the I.A.M. & A.W. as bargaining agent for

the cargo employees formerly covered by the agree-

ment. 29 a

Signed Roland J. Hawkins

Vice President and General Manager North and Central

American Division Compagnie Nationale Air France

30 a