Petition for Writ of Certiorari — Transport Workers Union v. Civil Aeronautics Board

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ALEXANDER L. S¥myas, f

CLERK

Supreme Court of the

October Term, 1983

TRANSPORT WORKERS UNION OF

AMERICA, AFL-CIO,

Petitioner,

CIVIL AERONAUTICS BOARD,

Respondent.

———————eE——————LCLCLR—E=—E=E€EEE=—L>>>E~==—EaEaEaEoEIyCyUyUyU)C)yoyoy>E>SSSSSSSSSSSSSS—

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA

Matcotm A. GoLDsTEIN

285 Madison Avenue

New York, New York 10017

(212) 532-8900

Counsel of Record for Petitioner

Transport Workers Umon of

America, AFL-CIO

Of Counsel:

O’DonnELL & ScHWaARTz

43 yp

QUESTION PRESENTED

1. Has the United States Court of

Appeals for the District of Columbia

("Court") permitted the caB! to usurp the

exclusive jurisdiction of the NMB to

1 when used in this brief, the organi-

zations and documents listed below

will be abbreviated as follows:

Unions Abbreviations

Transport Workers

Union of America,

AFL-CIO TWU

International Asso-

ciation of Machinists

and Aerospace Workers IAM

International |

Brotherhood of

Teamsters IBT

Air Line Employees

Association ALEA

Employers

Pan American World

Airways, Inc. Pan Am

National Airlines,

Inc. National

Governmental Agencies

Civil Aeronautics

Board CAB

National Mediation

oversee representation matters by allow-

ing it to direct an LPP arbitration in a

representation matter?

| PARTIES

' The parties to the decision sought to

be reviewed were the TWU and the CAB, and

the Attorney General of the United

States. Three parties intervened in this

matters Pan Am, IBT and IAM,

Board NMB

Documents and Laws

Labor Protective Pro-

visions imposed by the

CAB in the Pan Am

-National merger LPPs

Railway Labor Act,

45 U.S.C. §151 ff RLA

TABLE OF CONTENTS

QUESTION PRESENTED. .cccccccccvccvvevesel

PARTIES. cccccccccccccccescccsccccceelii

OPINIONS BELOW. .ccccccccccsccccccccccee

JURISDICTION, .ccccccceccccevecesesevced

STATUTES AND REGULATIONS INVOLVED.....3

STATEMENT OF THE CASE. .ccccccccvccveeed

A. The Structures Of The Companies..é

B. The Merger And The NMB'‘'s

RULINGS. cccccccccccccccccscccsoe!

C. The Seniority Integrations......10

l)a) TWU and Pan DR ccaacueasoeeke

b) The TWU Integration

Challenge. cccccccccsccesesl2d

2)a) IBT and Pan Bis crecsecostsesed4

b) The IBT Integration

Challeng@cccocveccccccccceelk

D. The Genesis of the Present

4, Oe ee 4. |

iii

PS ori | Pr r ee Tere rerrrrrrrrerrrery? ©

THE COURT AFFIRMED THE CAB'S

ABDICATION OF ITS .RESPONSIBILITY

TO DETERMINE WHETHER IAM'S AND

IBT'S PETITIONS RAISED A REPRESEN-

TATIONAL DISPUTE BETWEEN TWU

AND IBT WHICH LIES WITHIN THE

EXCLUSIVE JURISDICTION OF THE NMB..17

GU nce ee eh seesoseseceseceoscecsseeas

SOC tO ccc cece eseeseeseseceeeeeeeal

TABLE OF AUTHORITIES

Cases Page

Air Line Pilots Ass'n, Int'l

v. Texas Int'l Airlines,

656 F.2d 16 (2d Cir. 1951) ...... 18

Brotherhood of Loc. Fire. & Eng.

v. Seaboard Coast Line R. Co.,

413 F. 2d 19 (Sth Cir.), cert.

den'd, 396 U. S. 963 (1969)...... 24

Brotherhood of Railway and S.S.

Clerks v. United Airlines, Inc.,

325 F. 2d 576 (6th Cir. 1 foaae 22. 26

AE SD AE LATOR a a od

Delta Airlines v. CAB,

574 F.2d 546 (D.C. Cir. 1978),

cert. den'd, 439 U.S. 819 (1978) 21

Division No. 14, Order of

Rallroad Telegraphers v.

Leighty, 298 F. 2d 1?

th Cir. | ee 24

Gangemi v. General Elec-

tric Co., 532 F.2d 861

(2d Cir. BPE Peesbadcesosdeeneece 22

General Committee of Adjust-

ment, B.L.E. v. Missouri-K-T

R. Co., 320 U.S. 323 (1943)..... 24

John Wiley & Sons, Inc. v.

Livingston, 376 U.S. 543 (1964) 22

Leyva v. Certified Grocers

of Calif., 593 F.2d 857

(9th Cir. oo. RP a er 22

PAIN v. CAB, No. 82-1496 (D.C.

Cir. 3/7783) (per curiam order

aff'ming CAB order 82-3-16)..... 15

Pan American World Airways, Inc.

v. CAB, 683 F.2d 554 (1982)..... 20

Switchmen's Union of N. A. v. NMB,

320 U.S. 297 bo Sree li], 24

Administrative Decisions

CAB Order 82-3-16. .cccccccccccece 15

CAB Order 82-8-63...ccececeeeeeeee passim

CAB Order 82-88-65. .cccccccccccce 13

CAB Order 82-12-62. .ccccerccvee passim

NMB Order 7 NMB No. 114 (1980) 8-10

Statutes

RLA

Section 2, Ninth, 45 U.S.C.

§ 152, Ninth eee0e0e0e0eeeenstee#eee#8ee#8?#€e passim

IN THE

UNITED STATES SUPREME COURT

OCTOBER TERM, 1983

No.

‘

TRANSPORT WORKERS UNION OF AMERICA

AFL-CIO,

Petitioner,

CIVIL AERONAUTICS BOARD,

Respondent,

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA

Petitioner TWU respectfully prays that

a writ of certiorari issue to review the

judgment (with one judge concurring) of

the United States Court of Appeals for

the District of Columbia entered on Jan-

uary 20, 1984, upholding two orders of

the CAB dated August 13, 1982 and Decem-

ber 16, 1982.

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OPINIONS BELOW

The opinion of the Court of Appeals is

officially reported at 725 F.2d 775 and

appears in the Appendix hereto at page

A-l. The opinions of the CAB dated Au-

gust 13, 1982 is officially reported at

97 CAB 565 and appears in the Appendix at

page A-13. The opinion of the CAB dated

December 16, 1982 is not officially re-

ported, but appears in the Appendix at

page A-33.

JURISDICTION

The judgment of the Court of Appeals

was entered on January 20, 1984. This

petition is filed within ninety (90) days

of the date of this judgment. Jurisdic-

tion of this Court is invoked under 28

U.S.C. §1254(1).

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STATUTES AND REGULATIONS INVOLVED

Section 2, Ninth of the RLA, 45 U.S.C.

§152, Ninth, provides:

Disputes as to identity of representa-

tives; designation by Mediation Board;

secret elections. If any dispute shall

arise among a carrier's employees as to

who are the representatives of such em-

ployees designated and authorized in

accordance with the requirements of this

Act, it shall be the duty of the Media-

tion Board, upon request of either party

to the dispute, to investigate such dis-

pute and to certify to both parties, in

writing, within thirty days after the

receipt of the invocation of its ser-

vices, the name or names of the indivi-

duals or organizations that have been

designated and authorized to represent

the employees involved in the dispute,

and certify the same to the carrier. Upon

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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 Media-

tion Board shall be authorized to take a

secret ballot of the employees involved,

or to utilize any other appropriate meth-

od of ascertaining the names of their

duly designated and authorized represen-

tatives in such manner as shall insure

the choice of representatives by the

employees without interference, influ-

ence, or coercion exercised by the car-

rier. In the conduct of any election for

the purposes herein indicated the Board

shall designate who may participate in

the election and establish the rules to

govern the election, or may appoint a

committee of three neutral persons who

after hearing shall within ten days de-

au re

signate the employees who may participate

in the election. The Board shzll 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 necessary by it to carry

out the purposes and provisions of this

paragraph,

STATEMENT OF THE CASE

This case concerns CAB Orders which

direct an arbitration among Pan Am, peti-

tioner TWU, IBT and IAM ostensibly about

the "seniority" of certain former Nation-

al employees after the merger of National

with Pan Am, The CAB's Orders were up-

held by the Court below even though they

constitute a usurpation of the NMB'‘'s

authority over representation matters.

The decision of the Court below creates

confusion as to the statutory authorities

of the NMB and the CAB,

Petitioner TWU contends that there is

nothing to arbitrate because the NMB

determined at the time of the merger that

the merger that Pan Am's existing class

and craft lines would be kept intact, and

the attempt to arbitrate in this case is

nothing more than an attempt to cir-

cumvent the NMB‘s ruling. The CAB and

the Court below both failed to see that

by ruling for an arbitration, the CAB had

overstepped and invaded the NMB's juris-

diction.

A. The Structures Of The Companies

Late in 1979, the CAB approved of a

merger between National and Pan Am. The

two companies had different employment

Structures which had to be rationalized.

On pre-merger Pan Am, TWU represented

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ramp agents, cleaners and mechanics, as

well as other classes and crafts not

involved in this dispute. IBT represent-

ed station agents and stock clerks, to-

gether with other classes and crafts not

involved in this dispute,

On National, ALEA represented both ramp

and station agents, while IAM represented

cleaners, mechanics as well as stock

clerks.

B. The Merger And The NMB's Rulings

Promptly after the CAB approved the

merger, Pan Am put forward its solution

to the problem presented by the differing

employment structures. It announced to

both Pan Am's and National's employees

that when they became employees of the

merged airline, it was going to treat

them as members of the classes and crafts

defined by its existing collective bar-

gaining agreements, and, that its labor

Pe be Le

organizations would continue to have the

bargaining rights for these classes and

crafts,2

ALEA immediately petitioned the NMB to

block Pan Am from implementing its own

class and craft structure on the merged

airline, and for an order maintaining

status quo pending a ruling by NMB as to

what the class and craft structure should

be on the merged airline and who should

be the collective bargaining representa-

tives on the merged airline. Docketing

the case as R-5037, the NMB declined to

grant ALEA relief.

ALEA made two other attempts tc per-

suade the NMB to interfere with Pan Am's

decision to use its own classes and

2 subject to the rights under the RLA of

the merged airline's employees to

petition in the future to the NMB for

it to hold a representation election.

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crafts. Each time it was rebuffed. In

its third ruling, the NMB stated, inter

"The NMB's telegram of January 25,

1980, stated the Board's de-

termination that '. . . the

proper craft or class struc-

ture in R-5037 is that pre-

viously established on Pan

American World Airlines, Inc.

and Pan Am.'

Based upon all the facts and

circumstances, the Ro2rd

finds no basis to set aside

or amend its previous deter-

mination of craft or class in

this docket. The Clerical

and Related employees of Pan

American World Airways, Inc.,

including those appropriate

classifications incorporated

from National Airlines, Inc.,

constitute the proper craft

or class in R-5037.

Further, the Board finds that

the investigation in this

docket has been conducted in

such a manner as to afford

all interested participants,

including the ALEA, suffici-

ent opportunity to express

their views and to provide

evidence regarding voter eli-

gibility/showing of interest

issues. The Board itself is

satisfied with the thorough-

ness and quality of the show-

ing of interest investigation

in R-5037. (7 NMB No. 114

(1980)).

C. The Seniority Integrations

With the NMB's approval, Pan Am merged

the National employees in accordance with

its own class and craft structure.

ALEA's station agents were assigned to

IBT's bargaining unit. Its ramp agents

went to TWU's unit. IAM's stock clerks

went to IBT's bargaining unit, while

cleaners and mechanics went to TWU's

bargaining unit.

The method which Pan Am used to deter-

mine where particular employees of Na-

tional belonged was that it assigned them

to the Pan Am class or craft representing

the position which they occupied on the

date of the merger,

Although the NMB had determined the

class and craft structure of the post-

merger Pan Am, there remained the problem

of determining the relative seniority of

the National and pre-merger Pan Am em-

ployees within Pan Am's class and craft

structure. Since questions relating to

seniority, as distinct from representa-

ction rights, are within the its jurisdic-

tion, on this point the CAB gave gui-

dance, Section 3 of the LPPs provides as

follows:

Insofar as the merger affects the

seniority rights of the carriers'

employees, provisions shall be made

for the integration of seniority

lists in a fair and equitable man-

ner, including, where applicable,

agreement through collective bar-

gaining between the carriers and the

representatives of the employees af-

fected. In the event of failure to

agree, the dispute may be submitted

by either party for adjustment in

accordance with Section 13.

l)a) TWU and Pan Am

Between December, 1979 and April, 1980

TWU and Pan Am negotiated concerning the

manner in which a "fair and equitable"

seniority integration should be accom-

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plished. They determined that integra-

tion required by Section 3 of the LPPs

mandated that the seniority of all em-

ployees be treated in a uniform manner.

On April 18, 1980, on behalf of both

the pre-merger Pan Am and the National

employees it now represented on the mer-

ged airline, TWU entered into an agree-

ment with Pan Am which set the seniority

integration procedure.

b) The TWU Integration Challenge

Thereafter, a group of former National

mechanics, calling themselves the Main-

tenance Legal Action Committee ("MLAC")

objected to the Pan Am-TWU seniority

inteaqration agreement because it utilized

a date-of-hire method of seniority inte-

gration instead of a ratio method.

TWU and Pan Am agreed to arbitrate this

dispute pursuant to Sections 3 and 13 of

the LPPs. The issue, which Pan Am, TWU

and MLAC agreed upon and submitted to the

arbitrator, was whether "the integration

of the seniority lists as agreed to by

and between [Pan Am and TWU] on April 18,

1980 was accomplished in a fair and equi-

table manner."

All employees in the various crafts or

classes of airline mechanics, cleaner and

ground service employees received notice

of the arbitration and were given the op-

portunity to participate in the arbitra-

tion. The Arbitrator was David Stowe, a

former chairman of the NMB. After, se-

veral days of hearings which produced a

transcript of 998 pages, Arbitrator Stowe

issued a thirty-six page award ("Stowe A-

ward"), Subsequently, individual former

National mechanics challenged the pro-

priety of the Stowe Award before the CAB,

In Order 82-8-65, adopted August 16,

1982, the CAB dismissed their petition,

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thus confirming the Stowe Award and the

fairness and equitableness of TWU's inte-

grated seniority list.,.

2)a) IBT and Pan Am

Pan Am and IBT also attempted to nego-

tiate a seniority integration agreement

with respect to the crafts or classes

which IBT represents. Finally, after

several months of negotiations, in Au-

gust, 1980, the parties submitted the

matter to William F. Usery, a former

Secretary of Labor. Mr. Usery mediated

between the parties, and they finally

reached agreement on September 5, 1980,

Mr. Usery then reviewed the final agree-

ment and pronounced it fair and equitable

within the guidelines of Section 3 of the

LPPs,.

b) The IBT Integration Challenge

Just as TWU's seniority integration a-

greement was challenged before the CAB,

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so was the IBT's. A group calling itself

Pan American International, Inc. ("PAIN")

petitioned the CAB to have the IBT sen-

iority integration set aside. In Order

82-3-16, adopted March 4, 1982, the CAB

denied PAIN's challenge to the IBT sen-

iority integration agreement. Upon

PAIN's appeal, the Court of Appeais for

the District of Columbia summarily af-

firmed the CAB's ruling. PAIN v. CAB, No.

82-1496 (D.C. Cir. 3/7/83) (per curiam

order affirmino CAB order 82-3-16).

D. The Genesis of the Present Action

While TWU and IBT were striving to have

their respective seniority integration

agreements upheld, IAM and IBT each filed

a petition with the CAB improperly seek-

ing LPP arbitrations against TWU,

IBT claimed that because TWU had not

granted National station agents (formerly

represented by ALEA and never in the TWU

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unit) credit on the TWU post-merger sen-

iority list for their National ramp agent

seniority (which IBT had already given

credit) that TWU's seniority integration

was not "fair and equitable" within the

meaning of Section 3 of the LPPs.

IAM claimed that because TWU had not

granted National stock clerks (now repre-

sented by IBT and never in the TWU unit)

credit on the TWU post-merger seniority

list for their National mechanic or

cleaner seniority (which IBT refused to

recognize) that TWU's seniority integra-

tion was not "fair and equitable",

IAM's and IBT's petitions were consoli-_

dated by the CAB. In its Order 82-8-63,

the CAB ordered an arbitration pursuant

to Sections 3 and 13 of the LPPs, and in

its Order 82-12-62, upon Pan Am's appli-

cation for a rehearing, it reconfirmed

its direction of arbitration. TWU ap-

pealed these CAB Orders to the United

States Court of Appeals for the District

of Columbia, and it is the ruling of the

Court of Appeals affirming the CAB's Or-

ders which TWU seeks in this petition to

have reviewed,

ARGUMENT

THE COURT AFFIRMED THE CAB'S ABDICA-

TION OF ITS RESPONSIBILITY TO DETER-

MINE WHETHER IAM'S AND IBT'S PETITIONS

RAISED A. REPRESENTATIONAL DISPUTE

BETWEEN TWU AND IBT WHICH LIES WITHIN

THE EXCLUSIVE JURISDICTION OF THE NMB

Exclusive jurisdiction over representa-

tion matters arising under the RLA rests

with the NMB. RLA, Section 2 Ninth, 45

U.S.C. §152 Ninth; Switchmen's Union of

N. A. v. NMB, 320 U.S. 297 (1943). Even

if a dispute could be classified as both

a seniority dispute and a representation-

al dispute, exclusive jurisdiction lies

with the NMB as the expert agency with

respect to airline labor relations invol-

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ving parties governed by the RLA. Air

Line Pilots Ass'n, Int'l v. Texas Int'l

Airlines, 656 F.2d 16, 23 (2d Cir. 1981).

In Air Line Pilots Ass'n, Int'l v.

Texas Int'l Airlines, supra, the Court

found that.the facts presented neither a

pure representation dispute nor a pure

claim of interference with contract which

might have been separately actionable in

court under other provisions of the RLA,

Nevertheless, it ruled that because of

the court's traditional limited role in

the enforcement of the RLA and the exclu-

sive jurisdiction of the NMB to decide

representation disputes, that it must

defer to the NMB once a representational

dispute, even in non-traditional form, is

disclosed.

Given the precedent of deferring to the

NMB where there is even a hint of a re-

presentation dispute, it was prejudicial

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error for the CAB not to determine

whether the petitions of the IBT and IAM

presented a representation dispute beyond

the scope of its jurisdiction.

The CAB abdicated its responsibility by

referring the jurisdictional question to

an LPP arbitrator. It conceded that while

it might well be "violat[ing] the NMB's

order [determining the craft or class

structure on the post-merger Pan Am]," it

"preferred" to have the issue resolved by

an “experienced” labor arbitrator. (Order

82-8-63, Appendix pp. A-26 and A-27;

Order 82-12-62, Appendix p. A-40)

In affirming the CAB's decisions, the

Court below merely concluded pro forma

that the CAB's ruling were not “arbitrary

and capricious" within the meaning of

Section 10(e) of the Administrative Pro-

cedure Act (Appendix p. 8). It all but

ignored the critical point that the CAB

had not evaluated its jurisdiction, and

had ceded to an arbitrator the question

of whether a representation dispute is

involved. 3

The Court below relied upon its deci-

sion in Pan American World Airways, Inc.

v. CAB, 683 F.2d 554 (1982) to hold that

the CAB was correct to order arbitration

because doubts regarding arbitrability

should be resolved in favor of coverage

where the controverted claim can reason-

ably be said to fall within the scope of

the arbitration clause (Appendix p. A-6).

3 the failure of the Court below to see

the magnitude of the CAB's error is

particularly vexing in this case

because at oral argument in the Court

below, when questioned concerning the

CAB's handling of TWU's jurisdictional

claim, counsel for the CAB admitted

that the claim was novel. He stated

that this matter was “the only case of

which I am aware of where there has

been a dispute between unions, where

one party has claimed that there was

National Mediation Board jurisdiction

involved" (Appendix pp. A-55 and A-

56).

However, this ruling is in sharp con-

flict with its own earlier ruling con-

cerning the interplay of jurisdictional

questions with questions of arbitrabil-

ity. In Delta Airlines v. CAB, 574 F.2d

546 (D.C. Cir. 1978), cert. den'd, 439

U.S. 819 (1978), the Court said:

Once it is determined, therefore,

that the subject matter of a contro-

versy is subject to arbitration

under the LPP's, we believe that the

Board has the discretion to refer to

the arbitrator questions concerning

the procedural propriety of the

claims for arbitration of that con-

troversy. Delta Airlines v. CAB,

supra, at p. 550 [Emphasis sup-

plied].

In this case, by contrast, the CAB never

resolved the threshold question of the

its own jurisdiction before deferring the

matter to an arbitrator. Indeed, it

improperly left the arbitrator to deter-

mine whether the dispute of the IBT and

IAM involves a representation question.

Moreover, under the teachings of this

Court, the jurisdictional question of

whether a dispute is arbitrable always

remains with the Court, and cannot be

delegated to an arbitrator. John Wiley &

Sons, Inc. v. Livingston, 376 U.S. 543,

546-7 (1964). See also Leyva v. Certi-

fied Grocers of Calif., 593 F.2d 857, 861

(9th Cir. 1979); Gangemi v. General Elec-

tric Co., 532 F.2d 861, 865 (2d Cir.

1976).

While it is true that the IBT and the

IAM couched the dispute as one involving

"seniority", the CAB is obliged to pierce

the pleadings in order to discern the

true nature of the controversy. Brother-

hood of Railway and S.S. Clerks v. United

Airlines, Inc., 325 F. 2d 576, 579 (6th

Cir. 1963).

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Had the the Court below or the CAB

performed such an analysis in this mat-

ter, it would have discerned that the

critical issues are: a) whether former

National stock clerks and station agents

will be permitted to travel across Pan.

Am's class or craft lines, and b) which

union has authority to deal with Pan Am

concerning seniority in those classes or

crafts which TWU represents,

The Court below believed that because

"some individual employees ...[might] be

allowed a one-time ieisiiatenibte to change

from one class and craft to another"

(Appendix p. A-8), that the dispute did

not rise to the level of a representa-

tional dispute. The limitations to a

one-time movemen: may lessen the long-

range impact of the encroachment on the

NMB's jurisdiction and TWU's bargaining

rights, but it does not change the impro-

priety of permitting any such encroach-

ment.

Time and again, courts have held that

when a matter involves the movement of

employees back and forth across different

class and craft lines, it is a represen-

tational dispute, and that Congress has

vested exclusive jurisdiction to resolve

such disputes in the NMB. See Switchmen's

Union of N. A. v. NMB, Supra, at p. 300-

l; General Committee, B. L. E. v. Miss-

ouri-K-T R. Co., 320 U.S. 323, 336

(1943); Brotherhood of Railway and S.S.

Clerks v. United Airlines, supra; Bro-

therhood of Loc. Fire. & Eng. v. Seaboard

Coast Line R. Co., 413 F. 2d 19, 24-5

(Sth Cir.), cert. den'd, 396 U. S. 963

(1969); Division No. 14, Order of Rail-

road Tel. v. Leighty, 298 F. 2d 17, 19-20

(4th Cir. 1962).

Since the dispute is one which involves

a representation question over which the

CAB has no jurisdiction, it cannot obfus-

cate its lack of jurisdiction simply by

referring the matter to an arbitrator,

SUMMARY

When the Pan Am-National merger was

first announced, Pan Am. stated that it

was going to apply its class or craft

structure on the merged airline and was

going to recognize its duly certified

collective bargaining representatives as

the representatives for all employees on

the merged airline. ALEA, one of the

unions which stood to lose both member-

ship and representation status if Pan Am

effectuated its plan, sought before the

NMB to block the plan. The NMB ruled

that Pan Am could apply its class or

craft structure on the merged airline.

IAM and IBT seek to circumvent this rul-

ing, and the NMB's exclusive jurisdic-

tion, by raising claims predicated on

seniority rights accrued under National's

class or craft structure, even though the

NMB has ruled that National's class or

craft structure did not govern on Pan Am,

The CAB cannot avoid the impact of the

NMB's ruling simply by delegating the

matter to an arbitrator. The jurisdic-

tional defect renders the CAB powerless

to make such a delegation.

CONCLUSION

For all the reasons set forth in this

brief, a writ of certiorari should be is-

sued to review the opinion and judgment

of the United States Court of Appeals for

the District of Columbia,

Respectfully submitted,

MALCOLM A. GOLDSTEIN

285 Madison Avenue

New York, New York 10017

(212) 532-8900

Counsel of Record for

Petitioner Transport

Workers Union of Amer-

ica, AFL-CIO

Of Counsel:

O'Donnell & Schwartz

April 16, 1984

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 82-2080

TRANSPORT WORKERS UNION OF AMERICA,

AFL-CIO, PETITIONER

CrviL AERONAUTICS BOARD, RESPONDENT

PAN AMERICAN WORLD AIRWAYS, INC.,

INTERNATIONAL BROTHERHOOD OF TEAMSTERS,

CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA,

INTERNATIONAL ASSOCIATION OF MACHINISTS &

AEROSPACE WORKERS, INTERVENORS

Petition for Review of an Order of the

Civil Aeronautics Board

Argued 27 September 1983

Decided 20 January 1984

Malcolm A. Goldstein, for petitioner.

Joseph L. Manson, Ill, with whom Rorald B. Natalie

and Thomas E. Acey, Jr. were on the brief, for inter-

venor, Pan American World Airways, Inc.

A 2

Thomas L. Ray, Assistant General Counsel, Civil Aero-

nautics Board with whom Ivars V. Mellups, Acting Gen-

eral Counsel and Barbara Thorson, Attorney, Civil Aero-

nauties Board, Robert B. Nicholson and William J. Rob-

erts, Attorney, Department of Justice were on the brief,

for respondent.

James A. McCall with whom Robert M. Baptiste and

Roland P. Wilder, Jr. were on the brief, for intervenor,

International Brotherhood of Teamsters, Chauffeurs,

Warehousemen & Helpers of America.

John O’B. Clarke, Jr. was on the brief, for intervenor,

International Association of Machinists & Aerospace

Workers.

Before: TAMM and WILKEY, Circuit Judges, and

MACKINNON, Senior Circuit Judge.

Opinion for the Court filed by Circwit Judge WILKEY.

Concurring Opinion filed by Senior Circuit Judge

MACKINNON.

WILKEY, Circuit Judge: In this case petitioners appeal

from two orders of the Civil Aeronautics Board (CAB)

requiring arbitration proceedings.’ We find that the CAB

properly issued the orders, and accordingly affirm.

I. FACTS

On 24 October 1979, the Civil Aeronautics Board

approved a merger between Pan American World Air-

ways, Inc. (Pan Am) and National Airlines (National) .?

The CAB conditioned its approval of the merger on the

parties’ acceptance of labor protective provisions (LPPs).

Following the approval of the President, the merger be-

came effective on 19 January 1980.

1CAB Order 82-8-63 (13 August 1982) hereinafter,

Order], Joint Appendix [JA] at 1; CAB Order 82-12-62

(16 December 1982) [hereinafter, Order on Rehearing], JA

at 6.

2 CAB Order 79-12-168/164/165 (24 October 1979).

A 3

The labor protective provisions imposed by the CAB

were the standard provisions used by the agency since

1972. Section 3 required the merging airlines to provide

for the integration of seniority lists “in a fair and equi-

table manner.” * Section 13 obligated the parties to re-

solve disputes involving seniority rights either through

negotiations or arbitration.‘ By virtue of these provisions

the CAB retained power to direct arbitration of merger-

reiated seniority disputes.

From the outset the merger posed labor difficulties,

since the employees of the two merging airlines were

represented by different labor unions using different

craft and class systems. National’s mechanics, cleaners

and stock clerks had been in one bargaining unit, repre-

sented by the International Association of Machinists and

Aerospace Workers (IAM). National’s station agents and

ramp agents formed another bargaining unit, represented

by the Air Line Employees Association (ALEA). At Pan

Am, however, the mechanics and cleaners were grouped

with the ramp agents in a classification represented by

the Transport Workers Union of America, AFL-CIO

(TWU). The Pan Am stock clerks and station agents

® Section 3 of the Labor Protective Provisions reads:

Section 3. Insofar as the merger affects the seniority

rights of the carriers’ employees, provisions shall be made

for the integration of seniority lists in a fair and equitable

manner, including, where applicable, agreement through

collective bargaining between the carriers and the rep-

resentatives of the employees affected. In the event of

failure to agree, the dispute may be submitted by either

party for adjustment in accordance with Section 13.

4 Section 13(a) of the Labor Protective Provisions reads

in relevant part:

Section 13(a). In the event that any dispute or con-

troversy ... arises with respect to the protections pro-

vided herein, which cannot be settled by the parties within

20 days after the controversy arises, it may be referred

by any party to an arbitrator .... The decision of the

arbitrator shall be final and binding on the parties.

A &

formed another bargaining unit, represented by the In-

ternational Brotherhood of Teamsters, Chauffeurs, Ware-

housemen and Helpers of America (IBT).°

After the CAB’s approval of the merger, the National

Mediation Board (NMB) ruled that Pan Am’s premerger

bargaining structure should prevail at the new merged

airline. The National employees were folded into the Pan

Am system according to their predominant duties at Na-

tional. Because the two airlines had different craft and

classification systems, employees who had belonged to the

same bargaining unit at National were split into two

different bargaining units at Pan Am. National cleaners

thus joined a bargaining unit represented by the TWU,

while their former co-unionist stock clerks joined a differ-

ent bargaining unit represented by the IBT. Similarly,

the National ramp agents were assigned to the TWU,

while their former co-unionist station agents joined the

IBT.

The integration plan approved by the NMB inevitably

created disputes which had to be resolved through arbi-

tration. A group of former Nationa] mechanics, calling

themselves the “Maintenance Legal Aid Committee”

(MLAC), opposed the TWU seniority list because it used

a date-of-hire method instead of a rank-ratio method.

Pan American and TWU voluntarily consented to arbi-

trate the issue with MLAC under the LPPs. On 17

December 1981 Arbitrator David H. Stowe issued an

order upholding date-of-hire integration as appropriate

under the LPPs.*®

The IBT seniority integration agreement was also chal-

lenged by former National employees. The IBT seniority

5 The collective bargaining structures of both airlines be-

fore the merger and of Pan American after the merger are

set forth in some detail in the CAB orders under review.

* Arbitration Pursuant to CAB Order 79-12-164 in Docket

33282 (17 December 1981) [hereinafter, Stowe Award];

JA at 23, 58.

a6hCS

list had been set after former Secretary of Labor William

J. Usery was retained to mediate in negotiations between

IBT and Pan Am. With Usery’s assistance, the airline

and the union agreed on a seniority system of list integra-

tion based on an employee’s last date of hire, and on a

point seniority district basis, with a concurrent right

allowing employees whose jobs are abolished to bump

junior employees. The CAB approved this plan,’ and a

panel of this court subsequently affirmed the CAB’s deci-

sion with a per curiam order.*®

The negotiations between Pan Am and the unions ap-

parently did not specifically resolve whether the former

National stock clerks and station agents—now represented

by the IBT—could cross the Pan Am class and craft lines,

and use their seniority to bump their former co-unionists

from their jobs. The IBT and IAM argued that a fair

integration would allow the former National employees a

one-time chance to cross the Pan Am class and craft lines,

while TWU—which apparently had not sought to secure

such a right for its members—opposed the IBT’s and IAM’s

claim. Claiming that the issue properly arose under the

LPPs, the IBT and the IAM sought a CAB order com-

pelling arbitration of the issue.

The CAB found that the issue raised does “involve a

seniority dispute which was the direct result of the Pan

American-National merger and therefore falis within the

scope of the LPPs.”*® Consistent with this finding, the

CAB ordered the parties to arbitrate the dispute,’® and

on rehearing again denied the requests of the TWU and

Pan Am.”

7 CAB Order 82-38-16 (4 March 1982).

®P.A.ILN. v. CAB, No. 82-1496 (D.C. Cir. 7 March 1983)

(per curiam order affirming CAB order 82-3-16).

* Order at 4; JA at 4.

10 Order at 5; JA at 5.

11 Order on Rehearing; JA at 6.

A *°%

Pan Am and the TWU seek review of the CAB orders

requiring arbitration. They advance two principal argu-

ments: first, that the issue sent to arbitration does not

involve a bona fide seniority dispute under the LPPs, and

so is outside the jurisdiction of the CAB,” and secondly,

that any issue as to the validity of the seniority lists has

been resolved in the prior arbitration.”

IT. ANALYSIS

We note at the outset that the scope of review of the

Board order at issue here is very narrow. Under Section

10(e) of the Administrative Procedure Act, we may set

aside the Board’s action only if it was “arbitrary, ca-

pricious, an abuse of discretion, or otherwise not in ac-

cordance with law or . . . unsupported by substantial

evidence... .”

As this court has previously held, the standards govern-

ing arbitration of disputed claims under collective bar-

gaining agreements are equally applicable to disputes

arising under the LPPs.** In the collective bargaining

context, arbitration is required of any controverted claim

that can reasonably be said to fall within the scope of the

arbitration clause, with all doubts being resolved in favor

of arbitration. In determining whether an LPP claim is

arbitrable, the CAB “plays the role of a court in a tra-

ditional labor dispute and is justified in referring to

arbitration any dispute it determines to be at least argu-

12 Brief of Petitioner Transport Workers Union of America,

AFL-CIO [hereinafter, TWU Brief] at 9-23; Brief of Inter-

venor Pan American World Airways, Inc. [hereinafter, Pan

Am Brief] at 22-39.

18 TWU Brief at 24-25; Pan Am Brief at 19-22.

145 U.S.C. 706(2) (1982).

15 Pan American World Airways, Inc. v. CAB, 683 F.2d 554,

559 (D.C. Cir. 1982) ; Delta Air Lines, Inc. v. CAB, 574 F.2d

546, 550 (D.C. Cir.), cert. denied, 489 U.S. 819 (1978).

ably covered by the LPPs.” ?* Thus, if the CAB was cor-

rect in concluding that this case was arguably covered by

the LPPs, and if the issue had not already been resolved

under the LPPs, the CAB’s order must be upheld.

A. Presence of Seniority Dispute

The predominant issue in this case involves the proper

characterization of the complaint. If the dispute involves

seniority rights, then it arises under the labor protection

provision which requires “fair and equitable” integration

of the seniority lists,” and so clearly comes under the

sway of the CAB. If, on the other hand, the issue really

involves representational rights—as the TWU and Pan

Am claim it does “—then it raises issues reserved to the

146Pan American World Airways, Inc. v. CAB, 683 F.2d

554, 559 (D.C. Cir. 1982). Petitioners argue that the Pan

American case is distinguishable because it did not involve a

jurisdictional question. They argue that the CAB could not

delegate to an arbitrator the jurisdictional issue.

In analyzing this claim, it is important first to note that the

request for arbitration on its face clearly involves a seniority

dispute squarely within the jurisdiction of the CAB under

the LPPs. This is thus not a case where the CAB never had

jurisdiction; at most, it would be a case where the agency

was stripped of jurisdiction because of a competing grant of

exclusive jurisdiction to the NMB.

The petitioners’ argument would thus be more compelling

if a showing had been made that the arbitration would en-

croach on the NMB’s jurisdiction. See Air Line Pilots Ass’n,

Int'l v. Texas Int'l Airlines, 656 F.2d 16, 23 (2d Cir. 1981).

However, the current record fails to show that the arbitration

will cause a conflict with the NMB.

This case thus fits squarely under Pan American. It is

simply a case where the Board “is justified in referring to

arbitration any dispute it determines to be at least arguably

covered by the LPPs.” 683 F.2d at 559. The arbitrator re-

mains free to conclude, of course, that the dispute is ultimately

not within the LPPs.

17 Labor Protective Provision 3.

18 TWU Brief at 9-23; Pan Am Brak at 22-39.

A 8

NMB, and the CAB has at least arguably overstepped its

bounds.”

The CAB determined that the dispute did involve senior-

ity rights.*° The record shows that this conclusion was

not arbitrary and capricious. The kernel of the dispute

raised by the IBT is seniority rights. Any relief granted

by the arbitrator or the CAB must be couched in terms

of seniority rights. The dispute is thus at least facially

a seniority dispute.

The TWU and Pan Am argue nonetheless that the case

really involves representational rights. They assert that

the IBT, through the guise of protecting its members’

seniority rights under the LPPs, really seeks to force

Pan Am to treat it as the bargaining representative of a

class far larger than that allotted to it by the NMB.

This argument fails to persuade. The IBT does not

seek to acquire an expanded representational status, nor

does it strive to seek future recognition as the bargaining

representative for those crafts and classes now represented

by TWU. Nor does the {AM seek to perpetuate its rep-

resentative status in the new, merged airline. Nothing the

unions seek would alter the class and craft system ap-

proved by the NMB. At most, if the IBT and IAM should

win before the arbitrator, some individual employees

would be allowed a one-time opportunity to change from

one class and craft to another. While some individual em-

ployees would be represented by a different union if the

arbitrator accepted the two unions’ arguments, that alone

does not render this a representational dispute. What

*witters is that although individual employees might for

19 Air Line Pilots Ass’n, Int’] v. Texas Int’) Airlines, Inc.,

656 F.2d 16 (2d Cir. 1981) ; Division No. 14, Order of Rail-

road Telegraphers v. Leighty, 298 F.2d 17 (4th Cir.), cert.

denied, 369 U.S. 885 (1962).

2° Order at 4, JA at 4.

PRE FRE Hr,

whatever reasons change jobs, the boundaries of the bar-

gaining units would remain unchanged.”

B. Prior Arbitration

The TWU and intervenor Pan Am also argue that any

issues as to the fairness of the seniority integration under

the LPPs was resolved by the prior proceeding before

arbitrator Stowe.”? They decry the reopening of an al-

ready resolved dispute.

The prior arbitration did consider the fairness of the

seniority lists which were devised following the merger.

That arbitration, however, faced different facets of the

overall fairness issue, and differed in at least two critical

respects.

First, the Stowe award faced an issue not raised here—

whether the date-of-hire method was a fair method of

integrating the seniority lists.* The critical issue pre-

21Pan Am and TWU cite a number of cases which they

claim establish that this case should be treated as a repre-

sentational dispute. In this case, however, the IBT is not try-

ing to represent anyone outside its established bargaining

unit, and the IAM does not seek to perpetuate its prior repre-

sentation. It is thus distinguishable from the cases cited by

the petitioners, which largely involve disputes over whether

a union could represent a specific group of employees, or

whether a certified bargaining unit of one group was entitied

to represent a larger group of otherwise unorganized em-

ployees. See, e.g., Switchmen’s Union v. NMB, 320 U.S. 297

(1943) ; Air Line Pilots Ass’n, Int'l v. Texas Int'l Airlines,

656 F.2d 16 (2d Cir. 1981) ; Adams v. Federal Express Corp.,

547 F.2d 319 (6th Cir. 1976), cert. denied, 481 U.S. 915

(1977) ; Brotherhood of Railway & Steamship Clerks v. United

Air Lines, 325 F.2d 576 (6th Cir. 1963), cert. dismissed, 379

U.S. 26 (1964); Ruby v. American Airlines, 323 F.2d 248

(2d Cir. 19638).

22 TWU Brief at 24-25; Pan Am Brief at 19-22.

23 The award issued by arbitrator Stowe read :

The merger of the seniority lists of former National em-

ployees and of former Pan Am employees in the Mechanic

A 10

sented here, whether the former National employees could

use their seniority to bid for jobs under TWU’s repre-

sentation, was not treated. The claim presented here is

thus a fresh one, not resolved by the prior proceeding.

Secondly, the parties ultimately seeking relief here—

the former National stock clerks and station agents—were

not represented before arbitrator Stowe. Even the TWU

and Pan Am concede that those employees were not in-

volved in that proceeding.* The Board order requiring

arbitration here thus conforms fully with the Board’s

duty to see that all employee groups have a fair oppor-

tunity to participate in the integration process.

III. CONCLUSION

We reach no conclusions as to what result the arbitrator

should reach. We find only that the CAB acted within its

authority in sending this case to arbitration. For the

foregoing reasons, the orders of the CAB are

Affirmed.

and Grounc =~ vie craft, or class, shall be on the date of

hire basis as ‘vu. /@via in the Agreement dated April 18,

1980 between Pan Am and TWU.

JA at 58. The award, which is the only element of the arbi-

tration open to judicial review, is by its terms limited to the

“date-of-hire” issue. It says nothing about the dispute raised

in this case.

24 TWU Brief at 10; Pan Am Brief at 37.

A 1)

MACKINNON, Senior Circuit Judge (concurring). In

this case it should be pointed out that the CAB doubted

that the prior approval of the seniority lists by the arbi-

trator and the CAB precluded the present claims of IBT

and IAM, but the CAB made it clear that Pan Am and

TWU would be “free to argue” before the arbitrator that

reconsideration of the seniority lists would be unfair to

them. Order 82-8-63 at 5 (JA 5). Subject to calling at-

tention to this comment, I concur in the foregoing opinion.

A 13

Order 82-8-63

UNITED STATES OF AMERICA

CIVIL AERONAUTICS BOARD

WASHINGTON, D.C,

Adopted by the Civil Aeronautics Board

at its office in Washington, D.C.,

on the 13th day of August, 1982

In the matter of

PAN AMERICAN~ACQUISITION OF

AND MERGER WITH NATIONAL

(Docket 33283)

Petition of International Docket

Association of Machinists 39974

and Aerospace Workers to

compel arbitration,

Petition of International Docket

Brotherhood of Teamsters, 40033

Airline Division to compel

arbitration,

ORDER

This proceeding arises out of the Pan

American-National merger approved by the

Board and consummated on January 19,

1980, subject to implementation of labor

protective provisions (LPP's) (Orders

79-12-163/164/165). Before the Board are

—

A 14

two requests for arbitration of seniority

disputes which invoke our retained juris-

diction over sections 3 and 13(a) of the

LPP's,1 / The petitions were filed by

two unions on behalf of two groups of

former National employees now employed by

Pan American, the station agents and the

stock clerks. The petitions' purpose is

to reestablish the seniority rights these

workers had at National in the cleaner

1 / "Section 3. Insofar as the merger

affects the seniority rights of the

carriers' employees, provisions shall be

made for the integration of seniority

lists in a fair and equitable manner,

including, where applicable, agreement

through collective bargaining between the

carriers and the representatives of the

employees affected. In the event of

failure to agree, the dispute may be

submitted by either party for adjustment

in accordance with section 13."

"Section 13(a). In the event that

any dispute or controversy *** arises

with respect to the protections provided

herein, which cannot be settled by the

parties within 20 days after the

controversy arises, it may be referred by

any party to an arbitrator ***, The

decision of the arbitrator shall be final

and binding on the parties."

Oe CRENAET fom

A 15

and ramp agent job classifications.

Since the petitions have shown that there

is a dispute over seniority rights which

resulted from the Pan American-National

merger, the dispute appears to be covered

by the LPP's,. We will therefore grant

the requests for arbitration of the dis-

pute. In doing so, of course, we have

determined only that the petitioners are

entitled to arbitration not that they

should be awarded any of the relief they

seek,?_/

Under the Railway Labor Act, the Nat-

ional Mediation Board (NMB) has exclusive

jurisdiction to determine class or craft

composition for airline employee bargain-

ing units and representational rights.

At National, the NMB had sanctioned a

2_/ Each of the parties filed one or

more replies not authorized by the

Board's rules and motions for leave to

file unauthorized documents. We will

grant the motions.

A 16

class or craft unit composed of, among

other things, the job classifications of

cleaner and stock RTRSY, which was repre-

sented by International Association of

Machinists and Aerospace Workers (IAM).

A second class or craft unit at National

consisted of the classifications of sta-

tion agent and ramp agent and was repre-

sented by Air Line Employees Association

(ALEA). Pursuant to collective-bargain-

ing agreements between National and the

unions, IAM cleaners and stock clerks

could work in either position and accrue

separate seniority for each. The same

was true for ALEA station and ramp

agents. Consequently, for example, Na-

tional stock clerks with cleaner seniori-

ty or station agents with ramp agent sen-

iority could bid for the latter positions

on the basis of this separately maintain-

ed seniority if laid off as stock clerks

Or station agents. In doing so, they

would not cross National's established

unit class or craft lines, or come under

the aegis of another union representa-

tive.

This situation changed after National's

merger with Pan Am, for at Pan Am the

Transport Workers Union of America, AFL-

CIO (TWU) represented a unit containing

cleaners and ramp agents, and the Inter-

national Brotherhood of Teamsters, Air-

line Division (IBT) represented a unit of

stock clerks and station agents. Their

contracts with Pan American would not pe-

rmit TWU cleaners and IBT stock clerks,

or TWU ramp agents and IBT station

agents, respectively to exchange jobs and

hold dual seniority as the employees'

counterparts had done at National.

A 18

After the merger, the NMB ruled that

Pan American's premerger bargaining

structure, as opposed to National's

should prevail at the combined carrier,

In order to conform to Pan American's job

classifications for bargaining units,

former National cleaners/stock clerks and

ramp/station agents were assigned to one

of their two job classifications accord-

ing to their predominant duties at Na-

tional. They were placed in one of Pan

American's class and craft bargaining

units which did not include their other

National job classification. The stock

clerks, for example, no longer shared a

bargaining unit with the cleaners and in-

stead were combined with the station

agents. The National employees also be-

came represented by a new collective-bar-

gaining agent,“either TWU or IBT. These

unicns then bargained with Pan American,

A 19

as required by section 3 of the LPP's,

about integrated seniority for each of

the combined National and Pan American

classes and crafts,3 /

3_/ Both TWU's and IBT's seniority

agreements with Pan American were not

resolved without difficulty. A yroup of

former National mechanics, calling

themselves "Maintenance Legal Aid

Committee" (MLAC), disputed the TWU

agreement on the ground that it

constructed an integrated list by. date-

of-hire instead of by a rank-ratio

method. (Mechanics are a job

classification also included in the TWU

Pan American unit with cleaners and ramp

agents.) Pan American and TWU

voluntarily consented to arbitrate the

issue with MLAC under section 13(a) of

the LPP's. On December 17, 1981,

Arbitrator David H. Stowe issued an award

upholding the date-of-hire integration as

appropriate under section 3. (A petition

to vacate the award, filed by employees

Billy J. Williams, Pedro L. Contreras,

Harrell D. Scott, and Kenneth F. King, is

pending at the Board in Docket 40407.)

The IBT seniority integration

agreement with Pan American resulted from

mediation conducted by Former Secretary

of Labor William J. Usery, Jr. This

agreement was challenged before the Board

by some 150 former National employees

calling themselves "Pan American In

National” (P.A.I.N.). By Order 82-3-16,

served March 8, 1982, we held, among

other things, that P.A.I.N. failed to

A 20

The petitions filed by IAM and IBT seek

to reestablish for a period of time the

seniority rights that National's stock

clerks and station agents had, respec-

tively, in the cleaner and ramp agent job

classifications. The IAM petition is

filed on behalf of the stock clerks, em-

ployees who had been represented by IAM

at National, and the IBT petition is

filed on behalf of the station agents,

who are now represented by IBT.

IAM claims arbitration is required be-

cause there has been nc “fair and equi-

table" integration of the stock clerks'

seniority, since many of the National

stock clerks held seniority rights in

other job classifications which were not

show that the interests of its members

had not been fairly represented by IBT in

agreeing to a date-of-hire seniority list

for the unit. We accordingly dismissed

their petitions, a decision for which

they are seeking judicial review,

P.A.I.N. ve. CAB, D.C. Cir. No. 82-1496

(filed May 3, 1982).

A. 2h

preserved by the integrated seniority

-list agreed to by Pan Am and TWU. IAM

argues, moreover, that some of the stock

clerks have been injured as a result, for

they were laid off from their stock clerk

jobs without being able to use the sen-

iority rights they had accrued as clean-

ers at National. IAM concludes that the

stock clerks' claim comes within the

scope of the LPP's and must therefore be

arbitrated. IBT similarly argues that

the Board must order an arbitration of

the seniority dispute involving the sta-

tion agents now represented, by IBT and

the ramp agents now represented by

Twu. 4 J Both IAM and IBT state that Pan

4 / IBT has not objected to TAM's

continuing representation of former

National stock clerks\in this regard and

has stated its agreement to a

consolidated arbitral proceeding, with

Pan American and TWU, of the station-ramp

agent and stock clerk disputes. We note

that no union has raised the dual

seniority matter on behalf of former

National cleaners at Pan American who are

A 22

American and TWU at one time were willing

to arbitrate these claims with IBT and

IAM, but not under the LPP's. IBT and

IAM, therefore, have petitioned for or-

ders directing arbitration under the

LPP's,.

Pan American and TWU oppose LPP arbi-

tration. They point out that IBT and IAM

do not allege that the integrated list

for the TWU cleaner-ramp agent unit (or

the IBT stock clerk-station agent unit)

in itself violates the LPP's. Instead,

Pan American and TWU contend that by

these claims IBT and IAM are attempting

to circumvent the NMB's exclusive author-

now in TWU's unit. While these employees

have been credited, at Pan American, for

their accrued National stock clerk

seniority as part of their total unit

seniority, there is no express contention

to us that they should be entitled to

exercise their National stock clerk

seniority in IBT's Pan American stock

clerk unit. Presumably, however, if

stock clerks could bid into the cleaner

unit, the same should be true for

cleaners in the stock clerk unit,

A 23

ity to specify class or craft bargaining

units and representational rights at mer-

ged Pan American. They contend that al-

lowing former National stock clerks and

station agents, now in IBT‘'s Pan American

unit, to claim residual cleaner and ramp

agent seniority in TWU's unit -- the re-

lief sought here by petitioners -- means

that these employees would cross class or

craft lines contrary to the NMB‘s express

ruling maintaining Pan American's pre-

merger collective-bargaining structure,

Thus Pan American and TWU essentially ar-

gue that the Board has no authority under

the LPP's to authorize employee movement

back and forth between classes or crafts

which are represented by different labor

Organizations. Pan Am and TWU filed fur-

ther pleadings contending that the sen-

iority integration of the employees in-

volved had already been resolved through

A 24

arbitration proceedings. They cited Or-

der 82-3-16 (March 4, 1982), dismissing a

challenge to the integrated seniority

list negotiated by Pan Am and IBT, and

the arbitration of the seniority dispute

among the employees represented by TWU.

IAM and IBT filed replies contending that

they had no intention of challenging the

NMB's decision and that the other arbi-

tration and negotiation proceedings cited

by Pan American and TWU did not foreclose

the arbitration of the seniority rights

claimed by the stock clerks and station

agents.

In considering petitions for arbitra-

tion filed under section 3 of the LPP's,

we do not attempt to decide the merits of

the claim. Section 3 states that an ar-

bitration should be held if there is a

dispute among the carrier and the labor

representatives over the fairness of the

A 29

seniority integration of the merged car-

rier's employees. Under this standard we

have concluded that the petitions for ar-

bitration of IAM and IBT should be grant-

ed. Their claims do involve a seniority

dispute which was the direct result of

the Pan American-National merger and

therefore falls within the scope of the

LPP's. TWU and IBT assert that seniority

for some of the employees who held two

classifications at National (the station

agents, ramp agents, and stock clerks)

has yet to be credited to them as inte-

grated Pan American seniority. In their

view, accordingly, the existing seniority

integration agreements between Pan Ameri-

can, TWU and IBT have not completely re-

solved the seniority issues ina "fair

and equitable" manner,

A 26

Pan American and TWU argue that the re-

lief sought by IAM and IBT wieuld cons-

titute an attack on Pan American's craft

and representational bargaining structure

approved by the NMB. Cleariy, the solu-

tion to the dispute favored by petition-

ers, namely, allowing station agents,

ramp agents, and stock clerks to tempor-

arily exercise their residual National

seniority for their second former job

classification at Pan American, might

mean that these employees, for a limited

time, would move between bargaining

units. But this circumstance does not,

in our opinion, so clearly violate the

NMB's order as to require our dismissal

of the petitions for arbitration.> / We

5 _/ Pan American acknowledged that the

craft structure established by the NMB

could have created some anomalies for

National employees. On the other hand,

the IBT integrated seniority list

calculates the seniority for the former

National stock clerks and station agents

entirely on the basis of their seniority

A 27

prefer to have the arbitrator resolve

this issue, particularly since the arbi-

trator will be more experienced in labor

law matters than we are. Our preference

for having the arbitrator resolve this

issue if fully consistent with the rea-

soning of the Court of Appeals in its re-

cent decision in Pan American World Air-

ways v. CAB, D.C. Cir. No. 81-1963 (deci-

ded July 23, 1982). The Court, quoting

Air Line Employees Ass'n v. CAB, 413 F.2d

1092, 1095 (D.C. Cir. 1969), pointed out

that the Board's imposition of LPP's has

not transformed us into a labor board

"bound to pass on every question of labor

law which might arise out of a merger,"

and, citing American Airlines v. CAB, 445

in these classifications and excludes any

seniority they may have gotten in any

other job classification. On the surface

this seems inconsistent with IBT's claim

that TWU must recognize the station

agents’ seniority as ramp agents,

A 28

ied, 404 U.S. 1015, held that we “may

properly decide that [four] scarce re-

sources should be husbanded for the tasks

for which [we] consider [ourselves] to be

expert, rather than frittered away in an

area more suitable for an experienced la-

bor arbitrator.” The Court accordingly

concluded that “the Board is fully en-

titled -- and indeed expected -- to rely

on the expertise of an arbitrator to set-

tle disputes that at least arguably arise

under the LPP's" (slip op., pp. 9-10).

This analysis by the Court fully supports

our decision to have the arbitrator rule

on the claims by Pan American and TWU

that the claims made by IAM and IBT would

violate the NMB's decision,

We conclude as well that the establish-

ment of integrated seniority lists for

the employees within the TWU and IBT

units also does not preclude the holding

A 29

of an arbitration proceeding. We doubt

that the establishment of those lists ne-

cessarily cut off the claims now made by

IAM and IBT. Pan American and TWU are,

of course, free to argue that the resolu-

tion of the seniority lists within each

unit would make it unfair and inequitable

to give the station agents and stock

clerks seniority rights in the ramp

agent/cleaner job classification.

The only difficulty raised in our minds

by this proceeding is IAM's standing to

pursue LPP arbitration for employees now

represented by another union at the mer-

ged carrier. However, since that union,

IBT, fully acquiesces in IAM's participa-

tion in the seniority dispute, we accord

it party status in the LPP arbitration

now ordered,

A 30

Since the arbitration petitions involve

common issues and no party opposes

con-

solidation, we will consolidate the peti-_

tions.

ACCORDINGLY,

1. We consolidate and grant the

tions of International Association

chinists and Aerospace Workers and

national Brotherhood of Teamsters,

line Division for orders directing

tration under the labor protective

peti-

of Ma-

Inter-

Air-

arbi-

provi-

sions in Pan American-Acquistion Of Con-

trol Of And Merger With National, Docket

33283;

2. We order Pan American World Airway,

Inc., and Transport Workers Union of Am-

erica, AFL-CIO, within 30 days of the

date of service of this order, to par-

ticipate with petitioners, jointly,

the selection of an arbitrator pursuant

to section 13(a) of the labor protective

A 31

provisions for the purpose of arbitrating

the claims set forth in the petitions.

The arbitration shall be conducted in

conformance with section 13(a) of the la-

bor protective provisions: Provided, how-

ever, that nothing in this order shall

preclude the parties, jointly, from

agreeing to proceed pursuant to section

13(b) of the labor protective provisions

within the 30-day period;

3. We order the determination of the

arbitrator to be final and binding on the

parties to the arbitration;

4. We order Pan American World Air-

ways, Inc., upon receipt of the arbitra-

tor's award to file two copies of the a-

ward in C.A.B. Dockets 33283, 39974, and

40033, respectively; and

5. We retain jurisdiction to take such

action as may be necessary or appropriate

in the public interest.

A 32

By the Civil Aeronautics Board:

PHYLLIS T. KAYLOR

Secretary

(SEAL)

All Members concurred.

A 33

Order 82-12-62

UNITED STATES OF AMERICA

CIVIL AERONAUTICS BOARD

WASHINGTON, D.C,

Adopted by the Civil Aeronautics Board

at its office in Washington, D.C.,

on the 16th day of December, 1982

In the matter of

PAN AMERICAN-ACQUISITION OF

AND MERGER WITH NATIONAL

(Docket 33283)

Petition of International Docket

Association of Machinists 39974

and Aerospace Workers to

compel arbitration.

Petition of International Docket

Brotherhood of Teamsters, 40033

Airline Division to compel

arbitration.

ee 08 e@ 80 06 #8 88 e868 88 06 88 #8 08 88 86

ORDER ON RECONSIDERATION

By Order 82-8-63 (August 13, 1982) the

Board directed arbitration of a seniority

integration dispute between the Interna-

tional Association of Machinists and

Aerospace Workers (Machinists) and the

A 34

International Brotherhood of Teamsters,

Airline Division (Teamsters), on the one

hand, and the Transport Workers Union

(TWU) and Pan American World Airways (Pan

Am), on the other. The dispute grew out

of Pan Am's merger with National Air-

iines, a merger which we approved in Or-

ders 79-12-163/164/165 subject to labor

protective provisions (LPP's). After we

granted the petitions by the Machinists

and the Teamsters for an arbitration of

the dispute, TWU sought judicial review

of our decision, Transport Workers Union

v. CAB, D.C. Cir., No. 82-2080 (filed

September 15, 1982),

Almost two months after the deadline

for seeking reconsideration of our order,

Pan Am filed a petition for reconsidera-

tion and a motion for leave to file the

petition late. TWU filed a response sup-

porting Pan Am's request while the Machi-

A 35

nists and the Teamsters each filed an-

swers opposing reconsideration and op-

posing Pan Am's motion for leave to file

the petition. Pan Am also requested us

to stay our order directing arbitration

until we acted on its petition for recon-

sideration. The TWU supported Pan Am'‘s

stay motion, and the Machinists and the

Teamsters opposed it. .

We believe that Pan Am's petition for

reconsideration was filed inexcusably

late, for none of the reasons given by

Pan Am show good cause for its failure to

file a timely petition. We would dismiss

it on that ground had no one sought judi-

cial review of our order. However, since

the same arguments made in the petition

may be made by Pan Am before the Court,

we have decided to accept Pan Am's peti-

tion so that the Court will have the as-

sistance of our views on Pan Am‘s argu-

A 36

ments. After considering Pan Am's argu-

ments on the merits we have determined to

deny reconsideration,

The Machinists and the Teamsters sought

arbitration to reestablish certain sen-

iority and bumping rights claimed by some

former National employees. National's

cleaners and stock clerks were within the

same bargaining unit and represented by

the Machinists. National's station

agents and ramp agents were in another

unit represented by the Air Line Employ-

ees Association (ALEA). Many of the em-

ployees within each unit had worked in

both types of job within the unit and

could use their accrued seniority for

each type of job; thus, for example, a

station agent who had worked as a ramp

agent could use his ramp agent seniority

to bid for that type of job if he were

laid off as a station agent.

A 37

When National was merged into Pan Am,

however, these employees lost their abil-

ity to use their accrued seniority in a

second job classification. The National

employees became subject to Pan Am's bar-

gaining unit structure. At Pan Am the

stock clerks share a unit with the sta-

tion agents, not the cleaners, and are

represented by the Teamsters. The ramp

agents and cleaners are in a unit repre-

sented by the TWU. Pan Am's maintenance

of its premerger bargaining structure was

consistent with a ruling by the National

Mediation Board (NMB), the agency which

under the Railway Labor Act has the ex-

clusive jurisdiction for determining the

class or craft composition of airline em-

ployee bargaining units. After the mer-

ger Pan Am assigned each of the former

National cleaner/stock clerks and station

agents/ramp agents to a job classifica-

A 38

tion according to the employee's predomi-

nant duties at National. Because of the

difference in Pan Am's bargaining unit

structure, these employees were now in

units which did not include their other

National job classification. The bar-

gaining representatives at Pan Am, the

Teamsters and the TWU, each negotiated an

agreement with Pan Am to integrate the

seniority lists for its unit. See Orders

82-8-65 (August 16, 1982) and 82-3-16

(March 4, 1982), pet. for review pending

sub nom. P.A.I.N. v. CAB, D.C. Cir. No.

82-1496 (filed May 3, 1982). Under these

agreements, however, the National employ-

ees could not use their accrued seniority

in their second job classification; the

station agents, for example, who had ramp

agent seniority could not bid for ramp

agent positions as those positions were

in a different bargaining unit covered by

A 39

a seniority integration agreement which

gave workers outside the unit no senior-

ity credit.

This caused the Machinists and the

Teamsters to petition for an arbitration

under sections 3 and 13 of the LPP's! /

They sought to reestablish for a time the

seniority rights that National's stock

clerks and station agents had, respec-

tively, in the cleaner and ramp agent

1 / "Section 3. Insofar as the merger

affects the seniority rights of the

carriers' employees, provisions shall be

made for the integration of seniority

lists in a fair and equitable manner,

including, where applicable, agreement

through collective bargaining between the

carriers and the representatives of the

employees affected. In the event of

failure to agree, the dispute may be

submitted by either party for adjustment

in accordance with section 13."

"Section 13(a). In the event that

any dispute or controversy * * * arises

with respect to the protections provided

herein, which cannot be settled by the

parties within 20 days after the

controversy arises, it may be referred by

any party to an arbitrator * * *. The

decision of the arbitrator shall be final

A 40

classifications. We granted their peti-

tion over the objections of Pan Am and

the TWU, who primarily argued that such

an arbitration proceeding would undermine

the NMB's decision on Pan Am's bargaining

unit structure. We recognized that the

relief sought by the Machinists and the

Teamsters might cause some employees to

move into a new bargaining unit. We con-

cluded, however, that "this circumstance

does not, in our opinion, so clearly vio-

late the NMB's order as to require our

dismissal of the petitions for arbitra-

tion," Order 82-8-63, p. 4. We stated

our preference for having the arbitratcr

decide the issue, “particularly since the

arbitrator will be more experienced in

labor law matters than we are." As we

noted, our preference for having the ar-

bitrator decide the issue was “fully con-

sistent" with the Court's recent decision

A 41

in Pan American World Airways v. CAB,

D.C. Cir. No. 81-1963 (decided July 23,

1982), which affirmed a Board order di-

recting arbitration of another LPP dis-

pute,

Pan Am's petition for reconsideration

essentially argues again that the holding

of an LPP arbitration proceeding here

would violate the NMB's jurisdiction,

Pan Am asserts that the Board should not

proceed without first requesting the

NMB's opinion on whether the Board's ac~

tion would violate that agency's juris-

diction.

We would be pleased if the NMB offered

its opinion in this proceeding, we see no

reason for delaying the arbitration by

suspending it while we ask the NMB for

its views. Pan Am states that it be-

lieves that the NMB will give its opinion

if asked by the Board but fails to pro-

A 42

vide any foundation for this statement,

Neither Pan Am nor the TWU, which sup-

ports Pan Am, say that the NMB will only

give its opinion if the Board asks for

it. Neither Pan Am nor the TWU states

that it has made any effort on its own to

obtain the views of the NMB,

Accordingly, we will not delay the ar-

bitration proceeding in order to request

the NMB's opinion. However, we made it

quite clear in our earlier order that the

arbitrator should consider the jurisdic-

tional arguments made by Pan Am and the

TWU.2 / Pan Am and the TWU, moreover,

remain free to ask the NMB to provide its

views for the arbitrator's benefit, al-

2_/ Pan Am asserts without explanation

that the arbitrator has no authority to

rule on issues of law and therefore may

not rule on the issue of the scope of the

NMB‘s jurisdiction. This assertion is

unsupported by Board precedent and

practice.

A 43

though their doing so should not be al-

lowed to cause any undue delay in the ar-

bitration proceeding.

We remain unpersuaded, moreover, by Pan

Am's argument that the relief sought by

the Machinists and the Teamsters will in-

evitably violate the NMB's jurisdiction,

Pan Am and the TWU have construed that

relief as an attempt to change the bound-

aries of the bargaining units. The re-

lief requested, however, would not affect

those boundaries. Instead, it would

merely enable some employees to use their

accrued seniority to obtain jobs in the

TWU unit, a step which would cause them

to become represented by that union in-

stead of the Teamsters. This result on

its face does not appear to infringe on

the NMB‘s jurisdiction. According to the

Machinists, there are a number of cases

A 44

where employees hold seniority in dif-

ferent bargaining units subject to NMB

jurisdiction.

Our conclusion on this issue is sup-

ported by one of the cases cited by Pan

Am, United Transportation Union v. Bur-

lington Northern, 332 F. Supp. 486 (D.

Minn., 1971), aff'd, 470 F.2d 813 (8th

Cir., 1972). That case concerned a dis-

pute between two railroad unions over de-

termining the seniority of firemen, some

of whom also worked as engineers. The

fireman and engineer crafts were repre-

sented by different unions. The fire-

men's union sued the railroad to enjoin

it from carrying out an agreement with

the engineers’ union which allegedly

breached the railroad's contract with the

firemen's union. The district court re-

fused to take jurisdiction on two

grounds. First, the court ruled that the

A 45

dispute in essence was a jurisdictional

dispute over which union had the repre-

sentational authority to bargain with the

railroad on the seniority issue. As a

result, only the NMB could resolve the

matter. Secondly, the court held that

the contract issues could only be heard

by the National Railroad Adjustment

Board, for the federal courts had no jur-

isdiction over such issues. Pan Am, of

course, relies on the case for the

judge's first holding. However, while

the court of appeals affirmed the dis-

trict court's decision to decline juris-

diction, it did so only on the second

ground given by the district court. The

court of appeals expressly held that the

dispute was not a jurisdictional dispute

and further expressed its view that the

dispute should be settled in a proceeding

in which both unions participated. That

A 46

result is in effect the same one which

our order directing arbitration may

achieve here,?_/

3_/ The Eighth Circuit's decision in the

United Transportation Union case appears

to be consistent with Brotherhood of

Locomotive Firemen & Enginemen v. NMB,

410 F.2d 1025 (D.C. Cir., 1969), but

inconsistent with Brotherhood of

Locomotive Firemen v. Seaboard Coast Line

R.R., 413 F.2d 19 (5th Cir., 1969), cert.

denied, 396 U.S. 963. We prefer to have

the arbitrator decide which of the cases

should be followed here, as he will have

more expertise in labor law matters,

The other cases cited by Pan Am on the

NMB jurisdictional issue all involve

situations where the dispute clearly

involved a dispute over a union's right

to represent certain groups of employees,

although some also involved contract

enforcement issues. See General Comm. of

Adjustment of Brotherhood of Locomotive

Engineers v. Missouri-Kansas-Texas R.R.,

350 U.S. 323 (1943); Brotherhood of

Railway and Steamship Clerks v. United

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

Air Line Pilots Ass'n v. Texas

International Airlines, 656 F.2d 16 (2d

Cir., 1981). Since neither the

Machinists nor the Teamsters make any

claim that they should be able to

represent anyone in the TWU bargaining

unit, these cases are obviously not in

point here.

A 47

Pan Am's other objections to our order

are easily disposed of. First, it claims

we should defer to the greater expertise

of the NMB and not attempt to decide the

seniority dispute. As shown, however,

that dispute does not necessarily appear

to involve matters within the NMB'‘'s jur-

isdiction (or expertise), and that agency

has not expressed any opinion on this

proceeding. If the NMB does express an

opinion, however, we assume that the

arbitrator will treat it with great re-

spect.

Pan Am next asserts that the seniority

claims made by the Machinists and the

Teamsters essentially involve claims to

enforce rights under National's labor

contracts, Since those contractual

rights were assertedly extinguished by

Pan Am‘s new collective bargaining agree-

ments, there is no longer any basis for

A 48

the seniority rights asserted by the Ma-

chinists and the Teamsters. This argu-

ment misconstrues the source of the sen-

iority claims made by the Machinists and

the Teamsters. Their source is not the

collective bargaining agreements but the

LPP's provision that the seniority lists

of the two carriers must be integrated in

a fair and equitable manner. We may en-

force that provision whatever the terms

of Pan Am‘'s current labor contracts. See

Kent v. CAB, 204 F.2d 263, 266 (2d Cir.,

1953) ("A private contract must yield to

the paramount power of the Board to per-

form its duties under the statute crea-

ting it tc approve mergers * * * only

upon such terms as it determines to be

just and reasonable in the public inter-

est"); American Airlines v. CAB, 445 F.2d

891, 896 (2d Cir., 1971), cert. denied,

404 U.S. 1015; Int'l Ass'n of Machinists

A .49

v. Northeast Airlines, 536 F.2d 975, 977

(lst Cir., 1976), cert. denied, 429 U.S.

961. Pan Am and the TWU remain free, of

course, to argue to the arbitrator that

the relief sought by the Machinists and

the Teamsters should be denied because it

would unduly interfere with the TWU's

collective bargaining agreement.

Pan Am also asserts that the Machinists

and the Teamsters have no standing to

represent Pan Am employees who seek to

bid for jobs within the TWU unit. This

assertion has no merit, for it seems to

assume that the Machinists and Teamsters

are trying to represent employees within

the TWU unit. As shown, that assumption

is false.

Pan Am claims it has fully satisfied

its duty to arrange a fair and equitable

integration of seniority lists by having

separately agreed upon such lists with

A 30

the representatives of the applicable

bargaining units, the Teamsters and the

TWU. Although Pan Am is correct in say-

ing that no one has accused it of bad

faith in negotiating those agreements on

seniority integration, the parties whose

bargaining led to those agreements did

not appear to resolve the issue of the

seniority rights allegedly held by some

employees represented by the Machinists

and the Teamsters. Thus those agreements

can not be considered a final resolution

of the seniority issue. Here again, how-

ever, the arbitrator should consider the

claims of Pan Am and the TWU that it

would be unfair and inequitable to estab-

lish seniority rights for the Teamsters’

members for jobs in the TWU unit in view

of the fact that Pan Am and the TWU nego-

A 91

tiated in good faith an integrated sen-

iority list which has been in effect for

two years.

Pan Am's petition included an affidavit

of its System Director-Labor Relations,

who alleged that the relief sought by the

Machinists and the Teamsters could be

extraordinarily costly for Pan Am. His

affidavit states that Pan Am has been

using the seniority lists negotiated with

the TWU and the Teamsters for over two

years and has made numerous layoff deci-

sions according to those lists. If Pan

Am were found liable for back pay for the

layoffs made in reliance on these lists,

Pan Am would be potentially liable for

over $9 million, an amount which Pan Am

can not afford in its present financial

condition. This potential injury to Pan

Am is not a basis for denying arbitra-

tion, but it is a factor that the arbi-

A 932

trator can consider in determining

whether any relief should be awarded to

the Machinists and Teamsters,4 /

Finally, Pan Am has asked that we stay

our order directing arbitration pending

our decision on its petition for recon-

sideration. This order will clearly moot

Pan Am's stay request, but a stay would

appear unwarranted in any event. Cf. Or-

der 81-8-99 (August 17, 1981).

ACCORDINGLY,

1. We grant the motions of Pan Ameri-

can World ‘\irways, the International As-

sociation of Machinists and Aerospace

Workers and the International Brotherhood

of Teamsters, Airline Division, for leave

to file unauthorized documents; and

4 _/ The Board, however, has not in the

past awarded back pay, at least on a

significant scale, in seniority

integration disputes,

A 33

2. We deny the petition for reconsid-

eration and motion for stay filed by Pan

American World Airways.

By the Civil Aeronautics Board:

PHYLLIS T. KAYLOR

Secretary

(SEAL)

All Members concurred,

ee Cm Ste pe eH

A 55

EXTRACTS OF ORAL ARGUMENT BEFORE THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA

[page 16 line 18 to page 17 line 17]

(Mr. Ray appearing for the CAB] On the

National Mediation issue, again, that was

one issue that the Board said that the

arbitrator should consider. The Board

said if the National Mediation Board wan-

ted to submit its views to the arbitra-

tor, the arbitrator should give them

careful consideration.

I might note in that regard that the

National Mediation Board so far has never

filed anything with the Board indicating

any interest in this case whatacever.

QUESTION: Is it customary to do that?

MR. RAY: Your Honor, this is kind of

an unusual case. This is the only case

of which I am aware of where there has

A 36

been a dispute between unions, where one

party has claim that there was National

Mediation Board jurisdiction involved.

However, the Board many years ago --

QUESTION: I thought that was usual.

MR. RAY: No, Your Honor. What usually

happens is that -- |

QUESTION: Two unions fighting over

jurisdiction,

MR. RAY: No, Your Honor, that's not

true. Usually, you will have a situation

where one carrier's workforce is repre-

sented by one union, the second carrier's

workforce is represented by another

union, and the carriers, say, will work

out a list with one union and the second

union will object and then we will send

it to arbitration.

A 97

[page 18 line 14 to page 19 line 10]

(Mr. Ray appearing for the CAB] The

Transport Workers Union and Pan American,

in objecting to the arbitration order,

have given no reason why it was improper

for the Board to have referred the Na-

tional Mediation Board question to arbi-

tration. And it is a little hard to see

why it would be improper for the Board to

do that because, as the Transport Workers

Union said several times in the course of

their reply brief, we don't have much

labor law expertise.

It seems to me it would be reasonable

for every body, and it was certainly

proper for the Board to do hie. to de-

cise that a question which appears to be

as complicated as this should be decided

by somebody with some expertise in the

area.

A 38

QUESTION: You just said then that it

is proper for the National Mediation

Board -~- the CAB to refer a National

Mediation Board question for their de-

cision. Is that what you said?

MR. RAY: Yes, Your Honor, unless -- if

the carrier and the Transport Workers

Union had clearly shown that the relief

sought by the Nachiatens and the Team-

sters would violate the National Medi-

ation Board jurisdiction, then I suppose

it would have been improper for the Board

to do that.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.