Opposition — Delta Air Lines, Inc. v. Civil Aeronautics Board

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“MICHAEL RODAK, JR., CLERK

ln THE

Supreme Court of the United States

OCTOBER TERM, 1977

No. 77-1470

DELTA AIR LINES, INC.,

" Petitioner,

CivIL AERONAUTICS BOARD,

Respondent,

COMMITTEE OF FORMER NORTHEAST STEWARDESSES,

Respondent.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

BRIEF OF RESPONDENT COMMITTEE

OF FORMER NORTHEAST STEWARDESSES

IN OPPOSITION

J. GORDON FORESTER, JR.

1101 Seventeenth Street, N.W.

Washington, D.C. 20036

Attorney for Respondeat

Committee of Former Northeast

Stewardesses

WILSON - EPES PRINTING [O., INC. - 789-0096 - WASHINGTON, D.C. 20001

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INDEX

Page

ny I _ eclinsehdiebnmmiasiionate 2

STATEMENT OF THE CASE. .......-2c.- .cccccc--cececeeeceeeees-e 2

REI ESTEE SOE ESSRT hee ea ED METRE OOS 4

RE RS ARTES TS TAR LALLA, Re 8

TABLE OF AUTHORITIES

American Airlines Vv. CAB, 445 F.2d 891 (2d Cir.

1971), cert. denied, 404 U.S. 1015, 30 L.Ed.2d

& eee 5

Braniff Airways, Inc. v. CAB, 126 U.S.App.D.C.

399, 379 F.2d 453 (D.C.Cir. 1967) ...................... 6

Citizens to Preserve Overton Park, Inc. Vv. Volpe,

401 U.S. 402, 28 L.Ed.2d 136, 91 S.Ct. 814

a ak 7

City of Lawrence V. CAB, 343 F.2d 583 (1st Cir.

I cia ra ce 6

John Wiley & Sons v. Livingston, 376 U.S. 543,

11 L.Ed.2d 898, 84 S.Ct. 909 (1964) 20000. 5

Rochester Telephone Corp. Vv. Communication

Workers of America, 340 F.2d 237 (2d Cir.

| ELE SR re RN Nee NOT ne 5

Tobacco Workers International Union Local 317

v. Lorillard Corp., 448 F.2d 949 (4th Cir. 1971).. 5

IN THE

Supreme Cont of the United States

OCTOBER TERM, 1977

No. 77-1470

DELTA AIR LINES, INC.,

. Petitioner,

CIviIL AERONAUTICS BOARD,

Respondent,

COMMITTEE OF FORMER NORTHEAST STEWARDESSES,

Respondent.

Petition for a Writ of Certiorari to the United States

Court of Appeais for the District of Columbia Circuit

BRIEF OF RESPONDENT COMMITTEE

OF FORMER NORTHEAST STEWARDESSES

IN OPPOSITION

The Respondent, Committee of Former Northeast

Stewardesses, respectfully opposes the Petition for a

Writ of Certiorari to review the decision of the United

States Court of Appeals for the District of Columbia

Circuit dated January 20, 1978.

This Respondent was the original Petitioner before the

Civil Aeronautics Board and obtained the Order on Re-

mand of September 23, 1976 (Appendix to Petition, 1c)

which resulted in the appeal below. The Committee of

2

Former Northeast Stewardesses was granted leave to

intervene in the United States Court of Appeals for the

District of Columbia Circuit by Order dated November

4, 1976.

QUESTION PRESENTED

The Petitioner stated the issue improperly by insert-

ing disputed facts. In Issue (1) the following phrase

is included, “. . . when the request for arbitration un-

disputedly came many months after the time limits for

seeking arbitration had run...” This is incorrect and

in fact is the criteria utilized by the Civil Aeronautics

Board to refer the issue of timely demand to the Ar-

bitrator as the threshold question.

The question presented should be stated as follows:

Whether the Civil Aeronautics Board may refer a

seniority dispute arising out of an airline merger

to arbitration, and include therein a question as to

whether the party made timely demand for arbitra-

tion?

The United States Court of Appeals for the District

of Columbia Circuit stated the issue in the following

manner:

“The basic question before this Court is whether

the Board used its discretion by referring to the

arbitrator the procedural issue of timeliness of the

request for arbitration, rather than deciding that

issue on the record before it.” (Appendix to Petition,

2a)

STATEMENT OF THE CASE

The Petitioner distorts the facts of the case by assert-

ing that, “It was (and is) undisputed that the Committee

seeking arbitration did not request it until the Spring of

1974.” (Petition, p. 3)

This is not a fact, and was the initial question for

the Arbitrator in accordance with the referral by the

ae

3

Civil Aeronautics Board. The Board’s Order on Remand

dated September 23, 1976 held as follows:

“On the record before us, we are unable to defini-

tively resolve these and other questions pertinent to

the merits of Delta’s argument that the arbitration

provisions are untimely invoked. In some part, the

record is short on reliable facts .. .”

“In light of the above, we believe that the wisest

course to follow in furtherance of the Court of Ap-

peals’ ruling will be to order arbitration but to in-

clude in the arbitrator’s mandate a jurisdictional

question. Specifically, the arbitrator is to determine,

as an initial matter .. . whether, under all the cir-

cumstances, the claim to arbitration was asserted

within a reasonable time.” (Appendix to Petition,

7c-8¢ )

Throughout the Petitioner’s “Statement of Facts”,

Delta continues to assert that it did not receive any

complaints from any stewardess and further, that it re-

ceived no request for arbitration for many months after

the merger. (See variously Petitioner’s Brief, pp. 5 & 7).

The record clearly establishes that this assertion is

false and that the Northeast Committee made demand for

arbitration to Delta Air Lines as early as September 28,

1972. The Arbitrator’s Opinion and Award dated June

1, 1977 clearly responds to this assertion. Accordingly

to the decision of Arbitrator Harry Platt:

“Like the CAB, the Arbitrator would consider

Delta’s recital of the facts, “if true to be dispositive

of the question of timeliness” . . . The crux of Delta’s

position, as recited both to the CAB and in these

proceedings is that, “No formal complaint and re-

quest was received by Delta until April 5, 1974, or

some twenty months after the merger became effec-

tive.” However, this assertion was demonstrably in-

correct. (Opinion and Award, p. 22. Emphasis sup-

plied)

4

Arbitrator Platt further found:

“Delta had actual knowledge that the negotiating

committee, which rightfully represented the steward-

esses considered negotiations to have deadlocked and

wanted to arbitrate.” (p. 25)

“Shared, if not primary responsibility for such

delay must be assigned, in the first instance, to Delta

and the company may not interpose such delay as

a bar to arbitration at this time. (p. 27)’

ARGUMENT

The very basic issue here is whether the Civil Aero-

nautics Board abused its discretion by ordering arbitra-

tion of the timeliness question, particularly in view of the

conflicting assertions in the record before the Board.

These assertions were contained in pleadings as there

was no evidentiary record. The Petitioner has continued

to reiterate these assertions, both in the Circiut Court

and in the Petition filed herein. Delta asserts that, “The

undisputed facts are... that Delta received no request

from the committee for many months thereafter.”

This is false, as the Arbitrator specifically held, and

to so assert here is improper. Clearly, the Board would

have decided the timeliness issue had the facts been un-

disputed, and so held in its Order dated September 23,

1976. (Appendix to Petition, 7c). Therefore, its only

course, as supported by consistent decisional authority,

was to refer the question to arbitration.

In a dispute arising out of the merger between Ameri-

can Airlines and TransCaribbean Airways, the carrier

petitioned the CAB to refer the seniority dispute to a

‘Included in the Record of this case by Order of the United

States Court of Appeals for the District of Columbia Circuit, dated

September 28, 1977.

5

hearing examiner for determination. The Board declined

and referred the matter to arbitration. This was ap-

proved by the Second Circuit in American Airlines Vv.

CAB, 445 F.2d 891 (2d Cir. 1971), cert. denied, 404

U.S. 1015, 30 L.Ed.2d 663, 92 S.Ct. 674 (1972).

“If the Board’s experience convinced it that the

integration of seniority lists of employees of merging

carriers was a function which it was not well suited

to perform, and which, in the absence of agreement,

had best be left to arbitration, that was a judgment

it was competent to make.”

And further:

“What the Board can do, an arbitrator appointed

pursuant to its order can likewise do.” 445 F.2d at

896.

The District of Columbia Circuit Court relied upon

John Wiley & Sons v. Livingston, 376 U.S. 543, 11 L.

Ed.2d 898, 84 S.Ct. 909 (1964); Tobacco Workers In-

ternational Union Local 317 v. Lorillard Corp., 448 F.2d

949 (4th Cir. 1971); Rochester Telephone Corp. v. Com-

munication Workers of America, 340 F.2d 237 (2d Cir.

1965), and held:

“One rationale for approval of the delegation of

procedural issues to arbitration is that the substan-

tive and procedural aspects of labor controversies

are normally so intertwined that dividing their reso-

lution between arbitrators and courts would cause

unnecessary delay and duplication of effort.” “shn

Wiley & Sons v. Livingston, 376 U.S. at 557-558

(D.C. Cir. Opinion) (Appendix to Petition, 7a).

The lower court further heid:

“In this case, it is clear that the dispute over the

integration of the seniority lists was arbitrable. CAB

Orders 72-5-73/74 (April 24, 1972)” See American

Airlines, Inc. v. CAB, 445 F.2d at 228. Delta’s re-

fusal to participate in arbitration was based on the

procedural contention that no proper request for ar-

bitration of the dispute had been filed with it within

the time limits established by Section 13 of the LPP’s.

Under these circumstances, it can reasonably be said

that the Board, after finding the substance of the

dispute arbitrable, acted within the scope of its dis-

cretion in delegating the procedural question to the

arbitrator.” (Appendix to Petition, 8a)

Petitioner’s reliance upon Braniff Airways, Inc. V.

CAB, 126 U.S.App.D.C. 399, 379 F.2d 453 (D.C.Cir.

1967) is misplaced in that the court found a variance

between the Board’s assertion of facts and what the evi-

dence actually revealed. In the instant case. the Board did

rely upon the administrative record, which consisted of

conflicting assertions, and for that reason, referred the

timeliness issue to arbitration. There, an evidentiary

record was made in a four-day hearing and the Arbitrator

ruled that Delta’s alleged uncontested facts were “de-

monstrably incorrect”. (Opinion and Award, June 1, 1977,

p. 22). Petitioner continues to allege its own factual con-

tentions which have already been determined adversely

to it.

The Petitioner’s reliance upon City of Lawrence Vv.

CAB, 343 F.2d 583 (1st Cir. 1965) was also rejected

by the Circuit Court:

“. . . We do not believe however, that the Board, by

stating its “normal inclination” to decide such issues,

was thereby setting a standard for itself from which

it could not deviate without being found to have

engaged in arbitrary and capricious action. (Citing

City of Lawrence). Rather, we believe that the

Board was recognizing that it had the discretion

either to resolve or to delegate the timeliness ques-

tion, depending upon the adequacy of the record be-

fore it and the perceived need for specialized knowl-

edge in labor matters to deal with the question.

Furthermore, throughout the prolonged proceedings

7

leading to this appeal, the Board had consistently

stated that Delta’s particular timeliness argument

should be resolved in negotiations and arbitration.”

(Opinion n.24) (Appendix to Petition, 8a-9a)

The Cireuit Court relied upon Citizens to Preserve

Overton Park, Ine. v. Volpe, 401 U.S. 402, 28 L.Ed.2d

136, 91 S.Ct. 814 (1971) in applying an abuse of dis-

cretion standard to the CAB. This court held:

“Serutiny of the facts does not end, however, with

the determination that the Secretary has acted with-

in the scope of his statutory authority. Section 706

(2)(A) requires a finding that the actual choice

made was not “arbitrary, capricious, an abuse of

discretion or otherwise not in accordance with law

. . . Although this inquiry into the facts is to be

searching and careful, the ultimate standard of re-

view is a narrow one. The court is not empowered to

substitute its judgment for that of the agency.” (401

U.S. at 416)

These are the applicable standards and after a careful

review, the Circuit Court found that there was neither

an abuse of discretion nor an error of judgment.

Petitioner is less than candid when, at page 18 of the

Petition, it quotes the Court of Appeals:

“The undisputed facts before the Board do reveal

that the Committee made no formal protest to Delta

until many months after the Board’s September 1973

decision on TWU’s representational capacity.”

The Petitioner failed to continue with the pertinent

and qualifying language immediately following that quote:

“However, depending upon the arbitrator’s resolu-

tion of the issues posed by the Board, such a lapse

of time could become irrelevant to the final outcome

of the timeliness dispute.” (Appendix to Petition,

10a)

The Arbitrator’s Opinion did in fact find that demands

for arbitration had been made immediately upon conclu-

sion of negotiations and that the subsequent delays were

attributable to Delta.

CONCLUSION

The Northeast stewardesses have sought a resolution

to this seniority dispute for almost six years, since Sep-

tember 28, 1972 when negotiations concluded and the

Committee demanded arbitration which was their right

under the Labor Protective Provisions contained in the

Merger Order by the CAB. (Appendix to Petition, 1i

& 11i). The initial refusal by Delta resulted in two

netitions to the CAB, two appeals to the Circuit Court,

additional proceedings before both the court and the

Board, finally culminating in arbitration in March, June

and August, 1977. The legal struggle by the 351 former

Northeast flight attendants against their employer has

been monumental.

It is respectfully submitted that these issues can be

finally concluded by this Court’s denial of the Petition

for Certiorari. .

Respectfully submitted,

J. GORDON FORESTER, JR.

1101 Seventeenth Street, N.W.

Washington, D.C. 20036

Attorney for Respondent

Committee of Former Northeast

Stewardesses