# Petition — International Association of Machinists & Aerospace Workers v. Compagnie Nationale Air France > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0880%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 435 U.S. 1005 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0880%3A1. Public record. Not legal advice.