# Petition for Writ of Certiorari — Transport Workers Union v. Civil Aeronautics Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2742%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1984 - **Citation:** 469 U.S. 818 ## Text 83 - 16921) No. coe. Office - Supreme Court, U.S, TE ee D APR 16 tees ALEXANDER L. S¥myas, f CLERK Supreme Court of the October Term, 1983 TRANSPORT WORKERS UNION OF AMERICA, AFL-CIO, Petitioner, v. 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 ii 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 iv 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 vi IN THE UNITED STATES SUPREME COURT OCTOBER TERM, 1983 No. ‘ > TRANSPORT WORKERS UNION OF AMERICA AFL-CIO, Petitioner, Ve 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. = ” 7 > ie em é : Aik eae a4 7 ose Pa 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). letielel a a a 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 t ; : 7 i be , 7 “a a ." P B -. ss ary pre? - x i - a ee Bir Pc toa # ep =| 2 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 — oo 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. 8 a a Ce = : . : 5 rd a ; - A 7 << i i a] iy : 7 7 ; ; hi ; ee et ia § 5 fe” sk 4 t - Fi Pane tows —ee a& ob He | ae ee 2 or = >= 5 Pam = “a & io - 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- 9 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 10 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- ll Fed pd iog ~ aah 4s, ao | aay Wee a3 : ae - “any - 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 12 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, 13 — |) Fr "9 @ » a) Sane Khar: ses StH ee he: a a 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, 14 A= 45) Na 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 15 ma sd "Ee Can fomyes3 Gi mea ee Sate ; - 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- 16 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- 17 } 7 eae ao ag vipa! 4 ae mane 7s ve = » : ee 7 — nT) ‘y bret: | she 3 nie Ak 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 18 | . as Ke ' Can 1 : 2 i oe Big bee 88a fac aa a i i =< ae 309 ey need is 7 aft : a isc aen 4 - 4 : ~ a 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 19 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). 20 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. 21 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). 22 . ato Hy ; - erases ue = oe ¥' * ~*~ qh> a ie _ ae ee} aa rae 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 23 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). 24 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. 25 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. 26 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 27 United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 82-2080 TRANSPORT WORKERS UNION OF AMERICA, AFL-CIO, PETITIONER v. 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 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). i A 3 38 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 & 4 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 5 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 *°% 6 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). 7 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 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, 9 9 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 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. ee A 1) 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 Re 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, in 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2742%3A1. Public record. Not legal advice.