Petition for Writ of Certiorari — Flight Engineers' International Ass'n v. Pan American World Airways, Inc.

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: 89-1532

IN THE MAR 26 1990

WOSEPH Fs

Supreme Court of the United Sfates

October Term, 1989

FLIGHT ENGINEERS’ INTERNATIONAL ASSOCIATION,

PAA CHAPTER. AFL-CIO.

Petitioner,

against

PAN AMERICAN WORLD AIRWAYS. INC. and PAN

AMERICAN CORPORATION.

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

ASHER W. SCHWARTZ

60 East 42nd Street

New York. New York 10165

(212) 370-5100

Counsel of Record for Petitioner

Flight Engineers’ International

Association, PAA Chapter, AFL-CIO

Of Counsel

DAVID B. ROSEN

O'DONNELL & SCHWARTZ

QUESTION PRESENTED FOR REVIEW

When an airline and its parent company have made an agree-

ment with a union that represents a class of the airline's employ-

ees, to assign to those employees work of a certain description

which may be required by any subsidiary acquired by the parent

in the future, may a claim for damages based upon an alleged vio-

lation of that agreement be brought by the union directly to a

Board of Adjustment for resolution?

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW ..... et aa rehe

THE RAILWAY LABOR ACT REQUIRES THAT

DISPUTES ARISING FROM COLLECTIVE BAR-

GAINING AGREEMENTS, INCLUDING WORK

ASSIGNMENT DISPUTES, BE SUBMITTED TO

BOARDS OF ADJUSTMENT ...................

THE CLAIM OF THE UNION HEREIN IS NOT

WITHIN THE EXCLUSIVE JURISDICTION OF

THE NATIONAL MEDIATION BOARD.........

1. Definition of the Role of the NMB in Representa-

The Doctrine of the Exclusive Jurisdiction of the

NMB to Consider Certain “Representational

EN NS

3. Practical Effect of Damages Award ...........

4. Effect of the Decision Beiow: Voiding a Lawful

COMmrectual PROVISION... .............2.0000:

Comparison of Case at Hand with AFA _ vy.

nn a

ee Pa Gy vy ke ede eee dec es vevecne sence

PAGE

APPENDICES

Appendix A Opinion of the United States Court of

Appeals for the Second Circuit.......... la

Appendix B- Opinion of the United States District Court

for the Southern District of New York ... 7a

Appendix C Collective Bargaining Agreement:

Article 1—Recognition and Scope ....... 20a

Appendix U—Letter Agreement ........ 27a

Appendix D FEIA Grievance #6276 ................... 29a

Appendix E Amendment of FEIA Grievance #6276 ..... 31a

Appendix F Affidavit of James Jouver................. 33a

Appendix G Affidavit of David Rosen ................. 36a

Appendix H_ Statutes: Relevant Provisions of The % tase

Fg ee era Ser 39a

TABLE OF AUTHORITIES

CASES PAGE

AFA v. Delta Airlines, Inc., 879 F.2d 906 (D.C. Cir. 1989)

petition for cert. filed, 58 U.S.L.W. 3242 (U.S. Sept. 15,

CE i5-e os dae KOO eee eee passim

ALPA v. Republic Airlines, Inc., 798 F.2d 967

CPU Raee: SS rhino cases te wevarn veceeeeeel ean 12

Andrews v. Louisville & Nashville RR Co., 406 U.S. 320

RUNOEE sl ovay iste ticeaey onc ass ota eas tea 8

Brotherhood of Locomotive Engineers v. Louisville

Nastwilie RR Ca, F¥o US. SIUIGOS) co oo cece ccs. 8

Brotherhood of RY Clerks v. United Airlines, Inc.,

Fae ae Fe ee ee. TE og oo hc ca ee bie hb pees 12

Elgin, J & E Ry v. Burley, 325 U.S. 711 (1945) ........... 7-8

General Committee BLE v. Missount-K-T R. Co.,

Sat GA PEE ang 0b 30 a oe eee a evens 10

Int'l Brotherhood of Teamsters v. Texas Int'l Airlines, Inc.,

bee Bact. Le Ae. | | enter en-n omega 12

IUFA v. Pan Am, 836 F.2 130 (2d Cir. 1988) .......... passim

Order of Railway Conductors v. Pitney, 326 U.S. 561

5 | RRP RIES Anne alg EA Rig ope t ar iar et rin ita aeeregeye rear 8, 10

Slocum v. Delaware L. & W.R. Co., 339 U.S. 239

CR oats wvovninc a eae eee Oe a eee 8.10

Switchmen’s Union of N.A. v. NMB, 320 U.S. 297

i a ree, Weare Abe bee anm teh iiretcs 10

T.-C. E. Union v. Union Pacific R.R. Co., 385 U.S. 157

| eee ee EEE 8A mM ME ey te passim

: PAGE

Western Airlines v. Int'l Brotherhood of Teamsters,

ro 12

Administrative Decisions

Republic Airlines, 8 NMB 49 (1980) .........0..0..00.00.. li

Delta Airlines, 14 NMB 291 (1987) ..................... 19

Statutes

Railway Labor Act:

ok ws n che crew adeneeds 2

oie) S| a a Pe

§2 First, 45 U.S.C. §152 First ........ RTS Tee ee pe |

a Pee, or Wk. Shoe IER... ee cee ces as

ae eae ok Oo Uo, Soo First (i) ... 2... 6. ee 2, 8

oe eee gees, 4 U.S.C. $1535 First (m) ................ 2, 8

i ee ce rs the cea cwienen ao

IN THE

United States Supreme Court

October Term, 1989

No.

FLIGHT ENGINEER'S INTERNATIONAL ASSOCIATION,

PAA CHAPTER, AFL-CIO,

Petitioner,

PAN AMERICA WORLD AIRWAYS, INC., and

PAN AMERICAN CORPORATION,

Respondents.

PETITIONER FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Flight Engineers’ International Association PAA Chapter,

AFL-CIO (“FEIA”),' the petitioner herein, prays that a writ of

certiorari issue to review the judgment of the United States Court

of Appeals for the Second Circuit entered in the above-entitled

case on February 13, 1990.

OPINIONS

The opinion of the United States District Court for the

Southern District of New York is reported at 716 F.Supp. i10. It

is printed in the Appendix hereto at page 7a. The judgment of the

District court was affirmed by the Court of Appeals for the Sec-

' Flight Engineers’ International Association, PAA Chapter, AFL-CIO, a union,

does not do business as a corporation. It is an affiliate of Flight Engineers’

International Association, AFL-CIO. It has no subsidianes, wholly or partially

owned

ond Circuit on February 13, 1990 in an opinion which is printed in

the Appendix hereto beginning at page la.

JURISDICTION

The decision of the Court of Appeals for the Second Circuit

was entered on February 13, 1990.

Jurisdiction is conferred on this Court to review the judg-

inent below by 28 U.S.C. §1254(1).

STATUTES INVOLVED

The statute relevant to the issue here presented is the Rail-

way Labor Act (“RLA”), 45 U.S.C. §151 et seq. The following pro-

visions of the RLA are relevant to this case: §la, 45 U.S.C.

§151(a); §2 First and §2 Ninth, 45 U.S.C. §152; First and Ninth; §3

First (i) and (m), 45 U.S.C. $153 First (i) and (m); and §204, 45

U.S.C. §184. These provisions are set forth as Appendix H,

39a-42a.

STATEMENT OF THE CASE

The dispute herein has its genesis in the series of concession-

ary collective bargaining agreements which defendant Pan

American World Airways, Inc. (“PAWA”) has negotiated with its

labor unions—including plaintiff Flight Engineers’ International

Association, PAA Chapter (“FEIA” in order to deal with its

perennial and well-publicized financial difficulties.

Prior to its 1986 agreement with PAWA, FEIA’s collective

bargaining agreements for its OTIs were agreements only with

_PAWA. In those agreements, concessions were made in order to

assure the continued existence of PAWA as a viable provider of

2 FEIA, at all relevant times has represented the NMB certified collective bar-

gaining unit of Operations Training Instructors (“OTIs”) whose nghts are at

stake herein. It also represented and continues to represent, under a separate

certification, PAWA’s flight engineers

work to the OTI bargaining unit, and the OTI's right to a share of

that work as defined by Article 1(B) of the agreement (20a-22a).

That provision very precisely delineates what instructional work

must be performed “exclusively” by OTIs; what kind of work may

be shared with others, and under what circumstances; and what

kind of work is to be performed by what categories of OTIs.

The 1986-1988 OT] agreement with PAWA again contained

concessions by the OTIs (35a). One of the inducements for the

OTIs to sign the agreement in spite of these concessions was the

fact that the agreement bound not only PAWA but its parent

company, Pan American Corporation (“Pan Am Corp.”). Article

U of the collective bargaining agreement was a letter agreement,

signed by FEIA, PAWA and Pan Am Corp., whereby Pan Am

Corp. agreed that:

“it Or any successor to it will be bound by Article 1 of the

collective bargaining agreement of the Pan American World

Airways-FEIA collective bargaining agreement covering

Operations Training Instructors in the same manner as if

references to Pan American World Airways, Inc. in Article 1

read Pan American Corporation.” (27a).

This agreement by Pan Am Corp. provided to the OTIs mak-

ing the concessions embodied in the 1986 collective bargaining

agreement, important rights: first, it guaranteed that Pan Am

Corp., through its subsidiaries, would not attempt to assign

PAWA work which should be assigned to PAWA OTIs under the

collective bargaining agreement, to employees of other subsidiar-

ies; and, second, it provided that new work acquired by Pan Am

Corp. by corporate acquisitions would be assigned to PAWA

OTIs, thus providing a lift to the health of a bargaining unit whose

long run health was threatened by the decline of flight engineers in

the PAWA work force? (34a-35a)

3 New aircraft such as B-767s, do not require the presence of a flight engineer

(1.e., a “second officer”) in the cockpit. a large amount of the OTI’s work con-

sists of training flight engineers (35a).

The letter agreement thus provided contractual guarantees

that, even as concessions distasteful to the FEIA and the OTIs

were made in order to secure PAWA’s health, the OTIs and

FEIA would share in the economic benefits accruing to PAWA

and Pan Am Corp. as a result of these concessions by being as-

signed work of the type OTIs did “exclusively” for PAWA if and

when such work were done for other Pan Am subsidiaries. This

letter agreement was considered significant by the Union in sign-

ing the 1986 Agreement in spite of the concessions contained in it

(35a).

The dispute herein was generated by FEIA’s attempt to hold

PAWA and Pan Am Corp. to the bargain set forth in the Appen-

dix “U” letter of agreement.

The occasion for the dispute was the acquisition by Pan Am

Corp. of a regional airline, Ransome Airlines, Inc. (“Ransome”).

Pan Am Corp., following the acquisition, did not merge Ransome

into PAWA; instead, it decided to operate it as a distinct subsidi-

ary, and changed its name to Pan American Express, Inc. (“Pan

Am Express”) (37a).

Pan Am Corp. did not reassign Ransome/Pan Am Express

work of the kind defined by Article 1(B) as “exclusively” OTI

work to PAWA’s OTIs. Instead, it assigned it to a miscellaneous

group of its own employees (37a).

The initial FETA grievance generated by Pan Am Corp.'s

failure to reassign the instructional work in question to PAWA

OTIs was filed on August 7, 1986. In the grievance, FEIA sought

both an order to reassign Ransome work in accord with the provi-

sions of Article 1, and damages for noncompliance with Article |

(30a).

Following the decision of the Second Circuit in JUFA v. Pan

Amencan, 836 F.2d 130 (2d Cir. 1988) affg 664 F.Supp. 156

(S.D.N.Y. 1987), FEIA amended its grievance. The amended

grievance, filed on June 7, 1988, focused explicitly on the violation

of Article 1(B) entailed in Pan Am Corp.'s failure to reassign

Ransome/Pan Am Express instructional work to PAWA’s OTIs;

and sought only damages to compensate the OTIs for the viola-

tion of Article 1(B) by defendants (31a-32a).

Defendants refused to submit the amended grievance for

resolution by a Board of Adjustment acting pursuant to the col-

lective bargaining agreement and §204 of the RLA, 45 U.S.C.

§184.4 The Amended Complaint herein sought an order compel-

ling resolution of the dispute by a Five Man Board of Adjustment.

The District Court's jurisdiction over the complaint was based on

28 U.S.C. §§1331 and 1337, and the RLA, 45 U.S.C. §§151-188,

and was undisputed.

ARGUMENT

Introduction: the Need to Grant this Petition

The issue presented by this case is one that is critical for la-

bor relations in the airline industry in an era of merger and acqui-

sitions in that industry. It presents starkly the question of

whether an airline union may make an enforceable bargain with

an airline and its corporate parent over the fate of work that may

come to be controlled by them in the future as a result of future

acquisitions.

Under the doctrine enunciated by the court below, such bar-

gains, however solemnly and consciously arrived at by all parties,

may in effect be voided in their entirety by a carrier on the

grounds that a Board of Adjustment, in the course of deciding the

question of whether an alleged breach of the collective bargaining

agreement led to compensable damages, might also touch upon

“representation issues” ordinarily dealt with by the National Me-

diation Board (“NMB") in the course of deciding “representation

* The defendants had previously refused to submit the initial gnevance herein to

a Board of Adjustment, which resulted in the first complaint.

questions,” and that the Board of Adjustment would thus be in-

truding upon the “exclusive jurisdiction” of the NMB.

The theory advanced by the Second Circuit in so holding was

explicitly rejected by the D.C. Circuit in AFA v. Delta Airlines,

Inc., 879 F.2d 906 (D.C. Cir. 1989) petition for cert. filed, 58

U.S.L.W. 3242(U.S. Sept. 15, 1989) (No. 89-459). The court in that

case, emphasizing the undesirability of rendering lawful bargains

unenforceable, 879 F.2d at 915, as well as the dubious nature of

any theory granting to a tribunal such as the NMB “exclusive ju-

risdiction over an issue, as Opposed to a type of claim or a rem-

edy,"id., held that a violation of a collective bargaining agreement

provision regarding successorship could be enforced, even after a

complete merger, by a pre-merger collective bargaining represen-

tative, by means of a claim for damages.

In rendering its decision, the Second Circuit noted that its

own decision in a prior case prevented it from following the hold-

ing of the D.C. Circuit (6a).°

In arriving at a contrary holding on the same issue, the D.C.

Circuit held that the NMB’s “exclusive jurisdiction” extends only

to disputes over representative certification, and does not vest in

it exclusive jurisdiction over issues that it might pass upon in the

course of resolving such disputes, 879 F.2d at 915; further, it held

that even in the case of a full merger, a subsequent claim for dam-

ages by a pre-merger bargaining representative may be presented

for resolution to a Board of Adjustment.

The need to resolve the major issue at stake both here and in

AFA v. Delta should be clear.

First, the conflict between the Circuits renders the question

of the arbitrability of similar disputes entirely dependent on races

to the courthouse door: however rational or irrational our na-

5 We show below that the secondary reason suggested by the Second Circuit for

not applying APA v. Delta to the facts presented here cannot withstand even a

bnef analysis (see below, at pp. 18-21)

tional policy toward airline mergers and acquisitions has been

since deregulation, it can hardly be rational to permit the ques-

tion of the viability of a possible major merger or acquisition to be

determined by whether a union reaches the Clerk’s office with its

papers in Washington, D.C. prior to an airline reaching the

Clerk's office in New York.

Second, uncertainty of enforcement renders uncertain the

possible range of collective bargaining between unions and air-

lines. Here, for instance, a collective bargaining agreement be-

tween the union and the airline was concluded precisely because

the airline made the promise which the Second Circuit has per-

mitted it to void: the room for such bargains is eliminated by un-

certainty over their enforceability almost to the degree that it

would be eliminated by affirmation of the judgment below.

A. THE RAILWAY LABOR ACT REQUIRES THAT

DISPUTES ARISING FROM COLLECTIVE

BARGAINING AGREEMENTS, INCLUDING

WORK ASSIGNMENT DISPUTES, BE

SUBMITTED TO BOARDS OF ADJUSTMENT

§2, First of the RLA, 45 U.S.C. §152, First, states:

“It shall be the duty of all carriers . . . to exert every reason-

able effort to make and maintain agreements concerning

rates of pay, rules and working conditions.”

§1a(5) of the RLA, 45 U.S.C. §151(aX5) speaks in general

terms to the “maintenance” of agreements, providing that it is a

purpose of the RLA:

“to provide for the prompt and orderly settlement of all dis-

putes growing out of grievances or out of the interpretation

or application of agreements covering rates of pay, rules or

working conditions.”

Such disputes have been termed “minor disputes” by this

Court, see Elgin, J & E Ry v. Burley, 325 U.S. 711(1945), and must

be resolved by an appropriately established Board of Adjust-

ment, see 45 U.S.C. §153, First (1) and 45 U.S.C. §184, whose

awards are final and binding, 45 U.S.C. §153, First (m). It has

been well established by the decisions of this Court that these pro-

cedures specified by the Act are mandatory and exclusive, see

Andrews v. Louisville & Nashville RR Co., 406 U.S. 320 (1972);

Walker v. Southern Ry Co., 385 U.S. 196 (1966); and Brotherhood of

Locomotive Engineers v. Louisville & Nashville RR Co., 373 U.S.

33, 38 (1963).

Nor has this Court withheld from jurisdiction of Boards of

Adjustment disputes over whether a carrier's work assignment

practices violated a collective bargaining agreement, despite the

fact that such disputes might as easily be logically said to involve a

dispute over who was to represent employees doing a certain kind

of work, Order of Railway Conductors v. Pitney, 326 U.S. 561

(1946): Slocum v. Delaware L. & W.R. Co., 339 U.S. 239 (1950);

T.-C. E. Union v. Union Pacific R.R. Co., 385 U.S. 157 (1966). In-

deed, in 7.-C. E. Union, the Court went so far as to hold that the

Adjustment Board had not only the jurisdiction, but the “duty” to

completely resolve a dispute between two certified unions, each

with claims arising from its collective bargaining agreement, as to

which was entitled to be assigned a new job which had come into

existence since the conclusion of the agreements, id. at 161-2.

“The railroad, the employees, and the public, for all of whose

benefits the Railway Labor Act was written, are entitled to have a

fair, expeditious hearing to settle disputes of this nature. And we

have said in no uncertain language that the Adjustment Board

has jurisdiction to do so.” 7.-C. E. Union, supra at 162.

It should be clear without argument that the grievance herein

grows Out of “interpretation or application” of a collective bar-

gaining agreernent: it is the simple contention of FEIA that Arti-

cle 1(B) of the agreement obliged Pan Am Corp. to reassign

certain work being done by Ransome/Pan Am Express to

PAWA’s OTIs; and that failure to do so damaged OTI's who

should be compensated for the damages in an amount to be deter-

mined by the Board of Adjustment. Plainly considered on its own

terms, the dispute was a minor one which had to be resolved by

arbitration.

By precluding the Adjustment Board from thus resolving

this dispute, the Second Circuit has invaded and foreshortened

the jurisdiction of the Adjustment Board as defined by §3 of the

RLA: we show below that it did so in spite of the fact that there

was no need to in order to protect the jurisdiction of the NMB.

B. THE CLAIM OF THE UNION HEREIN IS NOT

WITHIN THE EXCLUSIVE JURISDICTION OF

THE NATIONAL MEDIATION BOARD

1. Definition of the Role of the NMB in Representation

Disputes

The role of the National Mediation Board in disputes con-

cerning representation of employees is set forth in §2, Ninth of the

RLA, 45 U.S.C. §152, Ninth:

“If any dispute shall arise among a carrier's employees as to

who are the representatives of such employees designated

and authorized in accordance with the requirements of this

Act, it shall be the duty of the Mediation Board, upon re-

quest 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 services, the

name or names of the individuals or organizations that have

been designated and authorized to represent the employees

involved in the dispute, and certify the same to the carrier.

Upon receipt of such certification the carrier shall treat with

the representative so certified as the representative of the

craft or class for the purposes of this Act... .”

The question of the “exclusive jurisdiction” of the National

Mediation Board to resolve “any dispute ... as to who are the

representatives of such employees designated and authorized in

accordance with the requirements of this Act” (i.e., what have

been termed traditional “representation disputes” see e.g., deci-

sion below, 4a) was first considered by the Supreme Court in

Switchmen’s Union of N.A. v. NMB, 320 U.S. 297 (1943), and Gen-

erui Committee BLE v. Missoun-K-T R. Co., 320 U.S. 323 (1943).

The District of Columbia Circuit in Flight Attendants v. Delta

Airlines, supra at 912, has summarized the significance of these

cases as follows:

“Switchmen’s Union and M-K-T lay down several principles

relevant to the present dispute. First, the Court made it per-

fectly clear in both cases that only the NMB may certify an

employee representative. Second, the Court in Switchmen’s

Union suggested that the scope of the NMB’s power under

§2, Ninth, is narrowly limited to determining the representa-

tive and issuing its certificate. Finally, the Court’s analysis in

M-K-T strongly suggests that if a dispute is not governed by

§2, Ninth it is not precluded, but rather may be pursued

through the voluntary processes, such as arbitration, that

Congress made the norm.” 879 F.2d at 912.

The limits of the doctrine of NMB “exclusive” jurisdiction

were further clarified by the Supreme Court in a series of cases

whereby the court made clear that, within the framework pro-

vided by initial NMB certification, work assignment disputes be-

tween certified unions could and should be resolved by

Adjustment Boards as minor disputes, see Order of Railway Con-

ductors v. Pitney, 326 U.S. 561 (1946); Slocum v. Delaware L. &

W.R. Co., 339 U.S. 239 (1950); T.-C. E. Union v. Union Pacific R.

Co., 385 U.S. 157 (1966), discussed above. The question of deter-

mining whether work should be assigned to a craft represented by

one carrier union or another clearly involves in some way a dis-

pute over who will represent employees doing work of that de-

scription; and yet, because contractual rights are also involved,

“we have said in no uncertain language that the Adjustment

‘

Board has jurisdiction to do so.” T.-C. E. Union v. Union Pacific

R. Co., supra at 162.

The proper limits of the doctrine of NMB “exclusive” juris-

diction are suggested by these early Supreme Court cases. Exclu-

sive NMB jurisdiction exists only if and when there is a dispute

over issuance of, or extinction of, an NMB certification; it does

not preclude an Adjustment Board from deciding to which un-

ion’s jurisdiction newly created work should be assigned; nor

does it exist where a union’s grievance does not demand represen-

tation rights (or their equivalent), but only seeks damages for a

carrier's failure to comply with a contractual work assignment ob-

ligation.

The doctrine of the exclusive jurisdiction of the NMB to de-

termine representation disputes in merger situations, a doctrine

developed by various Courts of Appeals, plainly emerges from

and does not subvert the limiting principles long established by

this Court. What distinguishes a full operational merger from a

work assignment dispute between a carrier's unions is precisely

the fact that, once a merger takes place, the representation certifi-

cation of any union representing only a minority of the merged

carrier's employees is extinguished by operation of law, Republic

Airlines, 8 NMB 49, 54-55 (1980). An attempt by a representative

of a minority of the employees to require compliance with the rec-

ognition and scope rights it enjoyed with a pre-merger carrier

would threaten to determine the only question legitimately within

the exclusive jurisdiction of the NMB, i.e., who should be certified

to represent the employees of the new merged carrier. The cases

which have developed the doctrine of the “exclusive Jurisdiction”

of the NMB to determine representation rights in merger situ-

ations have all—until this case®6—been based upon this need to

prevent a Board of Adjustment from determining a certification

® We may include, as well, the Second Circuit's decision in JUFA vy. Pan Am, 836

F.2d 130 (2d Cir. 1988) discussed below at p.13, n.9, which involved a dispute

over specific performance of a work assignment obligation by the carner; as

here. no operational merger was involved

question contrary to the policies of the NMB, see e.g., ALPA v.

Republic Airlines, Inc., 798 F.2d 967, 968-9 (7th Cir. 1986): Broth-

erhood of Ry Clerks v. United Airlines, Inc. , 325 F.2d 576, 578-9 (6th

Cir. 1963); Int’l Brotherhood of Teamsters v. Texas Int'l Airlines,

Inc., 717 F.2d 157, 159 (Sth Cir. 1983)? See also discussion of these

and similar cases in AFA v. Delta Airlines, supra at 912.8

The logic of the Second Circuit in reaching the decision be-

low is neither required nor justified by the line of cases establish-

ing the NMB’s exclusive role in post-merger disputes over

representation: nor can it be squared with this Court’s decisions

over the jurisdiction of Boards of Adjustment in work assignment

disputes.

2. The Doctrine of the Exclusive Jurisdiction of the NMB

to Consider Certain “Representational Issues”

The Court's primary reason for precluding the Board of Ad-

justment from deciding the merits of the Union’s contractual

grievance is that, although not a traditional dispute over repre-

sentation, the grievance “implicated representation concerns

within the exclusive jurisdiction of the NMB. . .” (4a). In explicat-

ing that conclusory language, the Second Circuit states that the

” “Enforcement of the contract, therefore inescapably entailed the continuance

of the Union’s role as employee representative for the minonty group, 1n accor-

dance with its 1980 certification. Continuation of the contract in force unavoid-

ably constitutes a determination of employee representation . . .”, /nt’l Bro. of

Teamsters v. Texas Int'l Air, 717 F.2d 157, 161 (Sth Cir. 1983).

® “The merger of Delta and Western airlines, which has given rise to such a tan-

gle of ligation, including AFA v. Delta Airlines, supra, also involved the com-

plete operational merger of two airlines with the inevitable question of “the

continuance of the Union's role as employee representative for the minonty

group,” cf. /BT v. Texas International Air, supra. It was in this context that Justice

O'Connor, sitting as Circuit Justice, made her often quoted remark that

“the great weight of the case law supports the proposition that disputes

as to the effect of collective bargaining agreements on representation in

an airline merger situation are representation disputes within the exclu-

sive jurisdiction of the National Mediation Board.”

Wester Airlines v. Int'l Brotherhood of Teamsters, 480 U.S. 1301(O’Connor,

Circuit Justice 1987}.

representation concerns “implicated” are “whether the union’s

certification applied to subsequently acquired Ransome subsidi-

ary and whether the two related airlines should be treated as a

single carrier for representation purposes.” Although the Court

itself did not at all explain the ambiguous “implicate,” it would

appear that the Court's concern was that in passing upon the mer-

its of the Union's grievance, the Board of Adjustment would be

required to(or at least might) pass upon these stated “representa-

tion concerns.”

There are two responses to this.

First, in point of fact, the Union's grievance here simply does

not give to the Board of Adjustment the occasion to address any

“representation concerns,” including the specific “concerns” the

Court cited. The grievance cites specific contractual language by

which—in the Union's view—Pan Am Corp. had obligated itself

to assign work of a certain specific description to OTIs in the bar-

gaining unit. Thus, the grievance simply called upon the Board to

decide whether Pan Am Corp. had in the past in fact lived up to

this obligation. This question can plainly be determined by doing

no more than looking to see whether Ransome/Pan Am Express

work has in fact been assigned in the past to PAWA OTIs. The

question is a simple matter of fact regarding past work assign-

ments: if the work has not been assigned to PAWA OTis, defen-

dants violated their contractual obligations, regardless of

certification and single carrier questions. The sole issue remain-

ing would then be whether money damages should be ordered.

and if so, how to measure the damages — again, questions with no

conceivable relationship to certification or the single carrier

question.9

® It 1s In respect to these considerations that the case at hand is distinguishable

from the Second Circuit's pnor decision in /UF.A vy Pan Am, 836 F.2d 130 (2d

Cir. 1988) (per cunam), affirming 664 F Supp 156 (SDNY 1987). In the prior

case, the union sought — inter alia— an order from the Board of Adjustment or-

dering Pan Am Corp. to cause Pan Am Express to change its work assignment

Footmote continued on next page

The second, and far more fundamental response, is that

there is no warrant in sound judicial policy or precedent for the

Second Circuit's theory that consideration of a “representation

concern” or “issue” by any tribunal other than the NMB is pro-

hibited by the doctrine of exclusive NMB jurisdiction. This view

was precisely that advanced by Delta in AFA v. Delta, and was

rejected by the D.C. Circuit in convincing fashion:

Second, we question whether (at least in the absence of a

clear statutory allocation of competence) any adjudicatory

tribunal can have exclusive jurisdiction over an issue, as op-

posed to a type of claim or a remedy. Virtually any issue may

arise in a variety of different contexts. As a general rule,

whether a case is within the exclusive jurisdiction of an ex-

pert tribunal depends upon the nature not of the issues that

may have to be decided, but of the substantive cause of ac-

tion. (citations and discussion of cases omitted). 879 F.2d at

915

This Court has in the past required Boards of Adjustment to

pass On representation issues in resolving the contractually based

claims of different unions regarding which class of employees was

entitled to do newly created work, see e.g., 7.-C. E. Union v. Union

Pacific R.R. Co., supra and cases cited avove at p.8. That case

Footnote continued from previous page

policies so as to conform with the collective bargaining agreement. Such an

order would indeed require resolution of the “representation concerns” cited

by the Court, :.c., compliance with the collective bargaining agreement for the

future could have been achieved either by orderng the work reassigned to the

existing PAWA flight attendants; or by finding that Pan Am Express flight at-

tendants should be deemed covered by the collective bargaining agreement

(either by virtue of the I[UFA certification or by a single carner theory). Decid-

ing which remedy to order would require a Board of Adjustment to decide the

“representation concerns.” Here, in contrast, where the Board of Adjustment

is being asked only for a money remedy for past conduct, there 1s no reason for

the Board to even consider these concerns

This distinction is meaningful only in the event that one accepts the Sec-

ond Circuit's general view of exclusive NMB jurisdiction over certain issues (as

opposed to disputes or remedies), a view whose total reyection we urge below

makes it clear that the expertise of the NMB in deciding class or

craft issues is not such as precludes a Board of Adiustment from

passing on such questions, thus supporting the view of the D.C.

Circuit that while the NMB has “exclusive jurisdiction” over dis-

putes over the extinction or revival of certifications, it does not

have “exclusive jurisdiction” over representation issues. We

therefore urge this Court to reject the Second Circuit's view on

this question, and adopt the D.C. Circuit's more nuanced and

well reasoned approach.

3. Practical Effect of Damages Award

The Second Circuit also relied on the practical effect of per-

mitting an Adjustment Board to determine the Union’s contrac-

tual claim for damages:

“. an award of the damages sought here —or even a realis-

tic threat of such an award—would have the same practical

effect as work reassignment on settling representation issues

by extinguishing the possibility of a separate Ransome bar-

gaining unit. No company in its right mind would continue

to pay twice for the same work; it would take steps to transfer

the work, if it could.” (Sa).

It is true that the possible cost of a damages award'° would

be an element taken into consideration by Pan Am in deciding

who to whom to assign the work. But considerations of cost in

determining work assignments are hardly illegal. If Pan Am

Corp. had a contract with a private flight academy to purchase

from it all of the training requirements of it and its subsidiaries,

'°The Court clearly erred in assuming that a damages award would necessarily

require the company “to pay twice for the same work.” The measure cf dam-

ages for the work assignment violation of contract is a matter for the Board of

Adjustment regarding which the Court’s assertion 1s at best speculation: the

Board of Adjustment might well take into account in determining an appropn-

ate measure of damages such factors as whether identifiable individuals were

hurt by the policy; how much the company saved by paying Ransome rates

rather than PAWA rates for the work; and how much of value the OTIs gave up

In contract negotiations in order to secure the provision which defendants vio-

lated

the threat of court action to enforce this obligation would obvi-

ously affect its work assignment policy; yet one can hardly imag-

ine any court dismissing such an action as within the “exclusive

jurisdiction” of the NMB.

Indeed, the Company had every right to decide on its own to

transfer the training work in question from Ransome employees

to PAWA OTIs, as it doubtless would have done had the cost fac-

tors favored the transfer. Plainly. the unique role of the NMB

would not have been relevant to any attempt to prevent such a

transfer.

What the Second Circuit has thus ruled is that a company in

Pan Am Corp.'s position may take into consideration in making a

work assignment decision every cost factor except the cost of com-

plying with its collective bargaining agreement. The inappropri-

ateness of—in effect—nullifying contractual rights simply

because they cost money and hence may be taken into considera-

tion in making a work assignment decision should be apparent;

indeed, the D.C. Circuit in AFA v. Delta emphasized the irrele-

vance of the cost to the carrier of complying with a damages

award, and its impact on merger decisions, to the question ot

whether a Board of Adjustment could hear the claim, AFA v.

Delta, supra at 917.

4. Effect of the Decision Below: Voiding a Lawful

Contractual Provision

The facts here establish that the agreement between Pan Am

Corp. and FEIA to assign to OTIs specific training work that

might be performed in the future tor future subsidiary acquisi-

tions of Pan Am Corp. was a vital part of the 1985 collective bar-

gaining agreement; it was, in effect. a promise by Pan Am Corp.

that, in exchange for current concessions to lower the costs of

PAWA training, OTIs would receive the added job security rep-

resented by a guaranteed role in training the personnel of future

subsidiaries. Absent agreement on the provision, the possivility

that a collective bargaining agreement could have been success-

fully negotiated is entirely speculative.

At no point in these proceedings has anyone suggested that

such an agreement is illegal. Pan Am’s power to effect the work

transfer unilaterally, because of cost considerations, is unques-

tioned; nor does anything in any statute or in decisions of this or

any other court indicate that the lawfulness of such a decision is

tainted by its being undertaken in order to take into account the

costs of compliance with a collective bargaining agreement.'' On

the contrary, as the Second Circuit conceded, the provisions of

the Railway Labor Act explicitly emphasize the critical impor-

tance of the carrier's duty to “make and maintain agreements.”

Any decision that voids a substantively lawful provision of such

an agreement not only assists a carrier in avoiding its duty to

“maintain” agreements; it also subverts the possibility of making

future agreements in difficult circumstances by rendering void-

able an entire category of subjects resolutions of which may make

the difference between an agreement and a strike. “Due respect

for privately bargained outcomes cautions against that result, un-

less some important public policy would otherwise be compro-

mised.” AFA vy. Delta, supra at 916.

Nor does the Second Circuit respond to these concerns, or

cite “an important public policy” by opining that, in a “merger”

situation the NMB must first be permitted to define representa-

tion rights before working conditions are established or inter-

preted (5a-6a).

This position can have one of two meanings. First, it can

mean that the gesture of presenting representation claims to the

NMB must be engaged in even where—as here—the claims are

not being made and cannot be justified, and that thereafter, hav-

"Such costs —1.e., OTT pay rates —were obviously taken into consideration in the

decision to assign the work to Ransome. why other costs—1.e., damages —

should not also be taken into consideration is hard to discern

ing had its “claim” predictably rejected, the union can proceed to

arbitrate a contractual work assignment claim. We cannot, how-

ever, perceive what purpose is to be served by requiring represen-

tation claims without merit to be filed with the NMB.

Second, the Court may have meant that failure of a union to

prevail with a representation claim means that it cannot present

to 2 “oard of Adjustment its contractual claim to the work in

quesuon This meaning at least has the advantage of not requir-

ing meritless claims to be filed with the NMB. However, it has the

more serious flaw of nullifying a contractual provision; because it

does so without serving any explicit—let alone important —statu-

tory command or policy, it should be rejected by this Court.

5. Comparison of Case at Hand with AFA vy. Delta

In its concluding paragraph, the Second Circuit addressed

the impact of the D.C. Circuit’s decision in AFA v. Delta on the

case at hand.

The Court's first observation forcefully established the need

for this Court to grant certiorari to resolve the basic issue com-

mon to both cases: the Court simply declined to follow AFA v.

Delta because“... we do not write upon a blank slate in this area,

in view of our controlling precedent in /UFA” (6a).

The Court then attempted to distinguish AFA vy. Delta on the

grounds that:

“... by the time of the D.C. Circuit's Delta decision, the

merger had been consummated and the NMB had retroac-

tively extinguished the union’s certification (since that union

then represented only a minority of the relevant class of em-

ployees); thus, in view of the NMB’s conclusive determina-

tion of the representation issue, a court order compelling

arbitration of the damages claim would not intertere with the

NMB's exclusive jurisdiction.” (6a)

There are several glaring flaws in the Court’s reasoning in making

this distinction.

First, an NMB determination of a “representation question”

can arise only if there is a serious question to present to the NMB;

here, there is no such question. The decision by Pan Am Corp.

not to merge Ransome/Pan Am Express with PAWA, but rather

tO Operate it as an Operationally separate subsidiary made it plain

to FEIA that the fact of the acquisition would in no way affect

representation rights at either Pan Am Corp. subsidiary under

NMB law: those unions certified at PAWA to represent certain

classes and crafts would continue to do so; and those who at-

tained such certification at Ransome/Pan Am Express as a result

of organizing activity unrelated to their legal status at PAWA

would enjoy those rights without any reference to the question of

who represented an analogous class or craft at PAWA. See e.g..

the Second Circuit's comments in /UFA v. Pan American, supra at

131. Had there been even the remotest chance for FEIA to obtain

an NMBruling that PAWA and Ransome had been merged intoa

single carrier, FEIA would obviously have initiated such an NMB

proceeding to obtain such a ruling, since the vastly larger size of

PAWA would have extended PAWA certifications to Ransome.

However, the decision of Pan Am Corp. not to effect any merger

doomed such a proceeding from the beginning. It should be axi-

omatic that the law not only does not require, but discourages the

filing of futile and frivolous actions and petitions: to require a un-

ion to file a frivolous representation petition as a condition prece-

dent for vindicating valid contractual rights is simply not a

reasonable position.

Second, the result of NMB action (initiated by Delta) in In re

Delta Airlines Inc. & Western Airlines Inc., 14 NMB 291 (1987)

shows clearly that FEIA’s right to pursue its damages claim here

is—if anything—stronger than AFA’s right in its case. For, by

that proceeding, the NMB extinguished all AFA representation

rights retroactive to the effective date of the merger. Thus, in per-

mitting the AFA damages claim to go ahead, the D.C. Circuit was

permitting that union to proceed with a claim in spite of the fact

that it no longer represented any of the employees involved, and in

spite of the fact that the airline against whom it was proceeding —

Delta—was a carrier whose employees it had never represented

and with whom it had no contractual relationship. In contrast,

here FEIA’s continued right to represent PAWA OTIs is unques-

tioned by anyone: and the continued validity of its contractual re-

lations with both PAWA and Pan Am Corp. is similarly

unquestioned. Indeed, the entire point of the Union's grievance

here is that it has a right to enforce contractual work assignment

commitments to it by those defendants regardless of the fact that

the work would be taken from employees of an unrelated Pan Am

Corp. subsidiary whose employees FEIA concedes that it does

not represent.

It should be clear that the underlying work assignment dis-

pute here is one that could be directly resolved by a Board ot Ad-

justment under the standards of AFA v. Delta. The reassignment

of work can be ordered, in the context of an acquisition without a

merger, without in any way interfering with NMB certification de-

terminations; merely to remove some work from one carrier's em-

plovees does not determine who those employees representative

must be.'2 Although that issue itself is not raised for decision by

the facts here, a consideration of it under the reasoning of AFA v

2Even a specific order of work reassignment would —like the damages claim in

AFA v. Delta—l\ack the “untoward results” of permitting a Board of Adjustment

to consider a representation claim: no policy of the revocation of a minonty cer-

tificate would be affected; the acquisition would not be undone; the collective

bargaining agreement would not be extended beyond its pnor reach; employees

in one craft would not be subject to different sets of working conditions, nor, 1n

general, would there be any effect on any NMB certification of representatives

at Ransome (compare 879 F &! at 913)

To the extent that Ransome/Pan Am Express unions themselves devel-

oped a contractual claim to the work in quesuon, the dispute between the un-

ions could and should be resolved by a Board of Adjustment hearing all claims

as per 7.-C_E. Union Pacific, supra, not by the NMB

Delta does emphasize the fact that the factors in favor of permit-

ting the union’s damages claim to proceed here are even stronger

than in AFA v. Delta; where the underlying work assignment itself

might be dealt with by a specific performance order without inter-

fering with the NMB’s exclusive jurisdiction, then the derivative

claim for damages clearly presents no possibility of interference

with matters within the NMB’s exclusive jurisdiction.

[t should be clear from the above discussion that the Second

Circuit erred fundamentally by failing to analyze the difference

between an acquisition followed by an operational merger. and

one where the independence and operational identity of a new ac-

quisition is retained: the operational merger does give rise to rep-

resentational questions which require that certain claims—not

including claims for damages —be reserved for the NMB; the sim-

ple acquisition in contrast, which does not give rise to representa-

tional claims, does give rise to work claims which, where they

conflict, can and must be resolved by a Board of Adjustment.

I.-C. E. Union v. Union Pacific R.R. Co., supra

CONCLUSION

The holdings of the D.C. Circuit and the Second Circuit on

the central issue raised both here and in AFA v. Delta cannot be

reconciled. Certiorari should be granted here so that this Court

may fully determine the limits of the doctrine of exclusive NMB

jurisdiction in merger and acquisition situations. Absent such a

determination, not only will key questions regarding employee

and carrier rights in similar situations be determined by forum

shopping: but the ability of unions at all airlines to negotiate en-

forceable agreements about how to handle possible future merg-

ers and acquisitions will be placed in doubt, with a consequent

impact on all collective bargaining in the industry

ee,

——

For the above reasons, FEIA’s petition for a writ of cer-

tiorari should be granted.

Of Counsel:

David B. Rosen

O’DONNELL & SCHWARTZ

March 21, 1990

Respectfully submitted,

ASHER W. SCHWARTZ

60 East 42nd Street

New York, New York 10165

(212) 370-5100

Counsel of Record for

Petitioner Flight Engineers’

International Association,

PAA Chapter, AFL-CIO

APPENDICES

APPENDIX A

Opinion of

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIR

IRC

No 1) \ ) ler mY

Argued: J iry 1d SA ecided: February 13, 1990

Docket No. SY-79

a , Tr 4 1?

p N AM I NW \ ‘ \

P AN AMI R] { \

BEFORE

FEINBERG, PRA] 1 MAHONEY,

4 4\4&

_ — |

ADpDe UU}? C < “ es Vistrict Co . tor

e Si ‘ Distric New York, Peter K. Leisure. J. granting

[ t defendants-appellees Pan American World Airways

— en

Append A

Inc. and Pan American Corporation to dismiss complaint of

plaintiff-appellant union, which sought an order compelling arbi-

tration. for the lack of subject matter jurisdiction

Affirmed.

DAVID B. ROSEN, New York. NY (O'Donnell & Schwartz,

of Counsel), for Plaintiff-Appellant

RICHARD SCHOOLMAN, New York, NY (Eikenberry

Futterman & Herbert. of Counsel, for Defendants

Appellees

FEINBERG, Circuit Judge

Plaintiff-appellant Flight Engineers rene Associa-

tion (FEIA) appeals from a judgment of the United States Dis-

trict Court for the Southern District of ‘ne York, Peter K

Leisure. J.. granting the motion of defendants-appellees Pan

American Corporation (Pan Am Corp.) and Pan American

World Airways. Inc. (PAWA) to dismiss the amended complaint

for lack of subject matter jurisdiction. Pan Am Corp. is a holding

company and is not an airline: PAWA 1s its ; wholly owned airline

subsidiary. The amended complaint charged that Pan Am Corp

and PAWA violated section 204 of the > Sees Labor Act (the

Act), 45 U.S.C. § 184, and the parties’ collective bargaining

agreement (the Agreement) by ita to arbitrate what FEIA

characterized as a contractual dispute arising under Article 1(B)

of the Agreement. Article 1(B), Known as a scope clause, requires

PAWA to use exclusively FEIA-represented Operations Training

Instructors (OIT’s) employed by PAWA to perform instructional

work in designated areas involving the training of flight engineers,

flight personnel and maintenance personnel. By a letter agree-

ment dated February 19, 1986, Pan Am Corp. agreed that tt, or

any successor, would be bound by Article | of the Agreement

Appendu A

In April 1986, Pan Am Corp. acquired a small regional air-

line, Ransome Airlines, Inc. (Ransome), which was later renamed

Pan Am Express, Inc. After becoming a wholly owned subsidiary

of Pan Am Corp., Ransome continued to use its own employees

as training personnel, rather than the OTI’s employed by PAWA

and represented by FEIA. None of the approximately 16 Ran-

some training personnel is represented by FEIA; some are repre-

sented by other unions and some are not represented by any

union.

In August 1986, FEIA filed a grievance, alleging that Pan Am

Corp. had violated Article 1 of the Agreement “by the failure of its

subsidiary, Ransome Airlines to employ OTI's in accord with the

Agreement.” Pursuant to the Agreement, FEIA sought to have

its grievance referred to a Board of Adjustment for arbitration

and requested as relief both the assignment of work to the OTI's

and backpay for all OTI’s damaged by the contractual violation

Pan Am Corp. and PAWA took the position that the grievance

involved a representation issue within the exclusive jurisdiction of

the National Mediation Board (NMB), and refused to submit to

arbitration unless required to by a court of competent jurisdic-

tion. In September 1987, FEIA instituted this action

In January 1988, this court decided in defendants’ favor an-

other case involving similar issues raised by another union arising

out of the same acquisition of Ransome by Pan Am Corp. Inde-

pendent Union of Flight Attendants (IUFA) v. Pan American

World Airways, Inc., 836 F.2d 130 (2d Cir. 1988) (per curiam),

affg 664 F. Supp. 156 (S.D.N.Y. 1987) Thereafter, FEIA

amended its grievance to eliminate any claim to work reassign-

ment but continued to seek damages. Defendants maintained

their refusal to submit the dispute to a Board of Adjustment.

In an opinion filed in July 1989, and reported at 716 F. Supp

110, Judge Leisure dismissed the complaint for lack of subject

matter jurisdiction. The judge held that the dispute implicated

representation issues within the exclusive jurisdiction of the NMB

Append A

pursuant to §2 Ninth of the Act, 45 U.S.C. §152 Ninth, and that

resolution by a Board of Adjustment acting pursuant to §204 of

the Act, 45 U.S.C. §184, and Article 23 of the parties’ Agreement

was thus precluded, at least in the first instance. The court be-

lieved that our recent decision in /UFA, mentioned above, con-

trolled the disposition of this case. In JUFA, a flight attendants’

union sought to compel arbitration of its claim that Pan Am

Corp. and PAWA had violated the scope clause of their collective

bargaining agreement by failing to employ flight attendants rep-

resented by I[UFA on Ransome flights. The district court dis-

missed the complaint for lack of subject matter jurisdiction, and

we affirmed

On appeal, FEIA continues to argue, as it did in the district

court, that this case is distinguishable from /UFA because FEIA

seeks only a retroactive award of damages resulting from defen-

dants’ noncompliance with a scope clause and not, as the union

sought in JUFA, a prospective order reassigning work to mem-

bers of its bargaining unit. FEIA contends that a claim for dam-

ages, unlike a claim for work reassignment, does not involve the

resolution of representation issues since it calls for only a factual

determination under the FEIA Agreement of whether the indi-

viduals who received the challenged work were OTI's working un-

der the Agreement.

We disagree. As the district court correctly noted, although

this case may not present “a traditional dispute over representa-

tion,” 716 F. Supp. at 115, it presents the same factors which, for

the /UFA court, had implicated representation concerns within

the exclusive jurisdiction of the NMB, 1.e., whether the union's

certification applied to the subsequently acquired Ransome sub-

sidiary and whether the two related airlines should be treated as a

single carrier for representation purposes. See IUFA, 664 F

Supp. at 159; see also Western Airlines, Inc. v. Internationa!

Brotherhood of Teamsters, 480 U.S. 1301, 1305 (1987) (O'Connor,

J., sitting as Circuit Justice) (“The great weight of the case law

jo)

Append A

supports the proposition that disputes as to the effect of collec-

tive-bargaining agreements on representation in an_ airline

merger Situation are representation disputes within the exclusive

jurisdiction of the National Mediation Board.”). Moreover, de-

spite FEIA’s etfort to characterize /UFA as only a work reassign-

ment case (concededly within the jurisdiction of the NMB), the

union there also sought “make whole” relief, i.e., money damages,

as FEIA does here. In addition, an award of the damages sought

here—or even a realistic threat of such an award —would have the

same practical effect as work reassignment on settling represen-

tation issues by extinguishing the possibility of a separate Ran-

some bargaining unit. No company in its right mind would

continue to pay twice for the same work; it would take steps to

transfer the work, if it could. Thus, like the district court, we re-

ject FEIA’s characterization of the present conflict as involving

solely a “minor dispute,” that is, a dispute over the interpretation

or application of existing collective bargaining agreements, which

under § 204 of the Act, 45 USC. § 184. is committed to an

authorized Board of Adjustment for resolution.

FEIA also argues that if the dispute is referred to the NMB

the scope clause will be rendered a nullity, since the NMB lacks

jurisdiction to enforce the terms of collective bargaining agree-

ments. FEIA maintains that this would deprive OTI’s of the

fruits of their 1986 bargain with appellees Pan Am Corp. and

PAWA and would unjustly secure for appellees the concessions

made in exchange for the work assignment agreement. Such a re-

sult, FEIA says, would also run counter to the statutory purposes

of section 2 First of the Act, 45 U.S C. §152 First, which imposes

on carriers a duty to “make and maintain agreements.” We are

not persuaded. As the district court pointed out, the NMB “must

have the opportunity to define how snd by whom, groups of em-

plovees in this airline merger situation are to be represented’;

only after the NMB’s determination “may the union and the em-

Appendu A

ployer, or their arbitrator, establish or interpret contractual

working conditions.” 716 F. Supp. at 116.

In short, we would ordinarily stop at this point and affirm for

the reasons given by the district court were it not for FEIA’s final

argument. FEIA asks us to follow the decision of the D.C. Circuit

in Association of Flight Attendants v. Delta Air Lines, Inc., 879

F.2d 906 (D.C. Cir. 1989), decided after the district court's opin-

ion in this case. The D.C. Circuit held, in the context of an airline

merger, that the district court had jurisdiction to order arbitra-

tion of the union's claim for damages against the surviving carri-

er, which was based on the alleged violation of a successorship

clause in the union’s contract with the absorbed carrier. Appel-

lant’s reliance on the Delta decision is inapposite for two reasons.

First, as indicated above, we do not write upon a blank slate in

this area, in view of our controlling precedent in JUFA. Second,

by the time of the D.C. Circuit's Delta decision, the merger had

been consummated and the NMB had retroactively extinguished

the union's certification (since that union then represented only a

minority of the relevant class of employees); thus, in view of the

NMB's conclusive determination of the representation issue, a

court order compelling arbitration of the damages claim would

not interfere with the NMB’s exclusive jurisdiction. Such a con-

clusive determination of the representation issue, without the in-

terference of the threat of an award, is precisely what is lacking

here

The judgment of the district court is affirmed.

APPENDIX B

Opinion of

UNITED STATES DISTRICT COURT,

S.D. NEW YORK.

OPINION AND ORDER

FLIGHT ENGINEERS’ INTERNATIONAL ASSOCIATION,

PAA CHAPTER, AFL-CIO,

Plaintiff,

Vv.

PAN AMERICAN WORLD AIRWAYS, INC. and

PAN AMERICAN CORPORATION,

Defendants.

No. 87 CIV. 6694 (PKL).

July 5, 1989.

LEISURE, District Judge.

Plaintiff, Flight Engineers’ International Association

(“FEIA” or the “union”), moves for summary judgment against

defendants, Pan American World Airways, Inc. (“PAWA”) and

Pan American Corporation (“Pan Am Corp.”). The complaint

charges that the defendants have violated the Railway Labor Act,

45 U.S.C. § 151, et seg., and FEIA’s collective bargaining agree-

ment by refusing to arbitrate what FEIA describes as a contract

dispute. Defendants have cross-moved to dismiss FEIA’s com-

plaint tor lack of subject matter jurisdiction.

As indicated below, the defendants’ motion to dismiss for

lack of subject matter jurisdiction is granted. Therefore, the

Appendux B

Court does not reach the plaintiffs motion for summary judg-

ment.

[In evaluating a FED.R.Civ.P. 12(bX 1) motion to dismiss for

‘ack of subject matter jurisdiction, a court may consider eviden-

tiary matters presented by affidavit or otherwise, and is not re-

stricted to the face of the pleadings. Kamen v. Amencan Tel. Co.,

791 F.2d 1006, 1011 (2d Cir.1986). See also Exchange Nat. Bank of

Chicago v. Touche Ross & Co., 544 F.2d 1126, 1130—31 (2d

Cir.i976). Consideration of extraneous materials does not con-

vert a motion under Fed.R.Civ.P. 12(b\ 1) into a Fed.R. Civ.P. 56

motuon. Kamen, supra, 791 F.2d at 1011

A motion to dismiss under Rule 12 must be denied “unless it

appears beyond a doubt that the — can prove no set of facts

in support of his claim which would entitle him to relief.” Scheuer

Vv. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90

(1974) (citing ial \ Gillean 355 U.S. 41, 45-46, 78 S.Ct. 99,

-102, 2 L.Ed.2d 80 (1957); Rauch v. RCA Corp., 861 F.2d 29 (2d

Cir.1988); Morales v. New York State Department of Corrections,

842 F.2d 27, 30 (2d Cir.1988). The Court must accept the pleader’s

allegations of facts as true, liberally construe those allegations,

and make such reasonable inferences as may be drawn in its fa-

vor. Dahlberg v. Becker, 748 F.2d 85, 88 (2d Cir. 1984), cert. denied,

470 U.S. 1084, 105 S.Ct. 1845, 85 L.Ed.2d 144 (1985); Murray v. Cib

of Milford, Connecticut, 380 F.2d 468, 470 (2d Cir.1967). See also

Scheuer, supra, 416 U.S. at 236, 94 S.Ct. at 1686; Pross v. Katz, 7

F.2d 455, 457 (2d Cir. 1986). On a motion to dismiss, the Court

must “determine whether the facts set forth justify taking juris-

diction on grounds other than those most artistically ple sded -

Yoder Vv. Orthomolecular Nutntion Institute, Inc., 751 F.2d 555,558

(2d Cir.1985). The following statement of the relevant facts is

based both on the pleadings and the affidavits submitted 1n con-

nection with the motions, but the determinative question, for pre-

sent purposes, raises a pure Issue of law

Appendu B

Background

PAWA is an international airline, and a wholly-owned sub-

sidiary of defendant Pan American Corp. FEIA is the exclusive

collective bargaining representative of PAWA’s Operations

raining Instructors (“OTI’s”). FEIA obtained its representative

status through a certification issued by the National Mediation

Board in 1968. See Article 1(A) of the Collective Bargaining

Agreement (the “Agreement”), attached as Exhibit A to First

Amended complaint (the “Complaint’ )

Article 1(B) of the Agreement contains what is often called a

“scope” clause; this agreement's scope clause required PAWA to

utilize FEIA-represented OTI’s employed by PAWA whenever

PAWA performs training of, inter alia, pilots, flight attendants,

and ground personnel. The Agreement specifically provides that

“OTI’s by component group, shall exclusively perform the in-

structional work which is conducted by the Company requiring

the services of an Instructor.”

In addition to the original Agreement, a letter dated Febru-

ary 19, 1986 was signed by FEIA, PAWA, and Pan Am Corp. and

was subsequently appended to the Agreement as Appendix |

[hat letter stated in relevant part

Pan Am Corporation, parent of Pan American World Air-

ways, Inc., agrees that it or any successor to it will be bound

by Article I of the Pan American World Airways

Inc.—FEIA collective bargaining agreement covering Op-

erations Training Instructors in the same manner as if refer-

ences to Pan American World Airways, Inc., in Article I read

Pan American Corporation

[In April 1986, after the Agreement was supplemented by the

above noted letter, Pan Am Corp. purchased Ransome Airlines,

Inc. (“Ransome”), a regional airline. Prior to the acquisition

Ransome had been an independent carrier, unatfiliated with

either of the defendants. Subsequent to the acquisition, Ransome

10a

Appendu B

became, like PAWA, a wholly-owned subsidiary of Pan American

Corp. In October 1986, Ransome’s name was changed to Pan

American Express, Inc. (“Pan Am Express”).

After being acquired by Pan Am Corp., Ransome continued

to utlize its own employees, not PAWA-employed/FEIA-repre-

sented OTI's, to conduct training for its own pilots, flight atten-

dants, and ground personnel. Of the approximately 16 Ransome

employees training other Ransome employees, some are repre-

sented by the Independent Union of Flight Attendants, some by

the Air Line Pilots Association, and some are un-represented.

See Affidavit of David C. Reeve, sworn to on December 6, 1988,

q 2 -3.

The FEIA took the position that PAWA and Pan Am Corp.

violated Article 1(B) of its agreement by failing to utilize FEIA-

represented OTI's to train Ransome personnel. FEIA conse-

quently filed its initial grievance and sought to refer the grievance

to a five man Board of Adjustment, as provided by Article 23 of

the Agreement. As a remedy, FEIA sought the assignment of

work to FEIA-represented OTI's, as well as damages. PAWA re-

sponded by denying FEIA’s grievance, and declined to submit to

arbitration by the Board of Adjustment. PAWA stated that it

would submit to arbitration by the Board of Adjustment only if

compelled to do so by court order. See Complaint ¢ 13-15.

FEIA, in turn, filed this action.

Following the decision of a similar case, [UFA v. Pan Amen-

can World Airways, Inc., 664 F.Supp. 156 (S.D.N.Y.1987), aff-d,

836 F.2d 130 (2d Cir. 1988), decided in PAWA’s favor, FEIA

amended its grievance. The amended grievance eliminated any

claim to the work and sought only the money its PAWA-em-

ployed OTI’s would have earned if allowed to train Ransome per-

sonnel. PAWA stood by its belief that the grievance was not

arbitrable, and reiterated its position that it would not arbitrate

before the Board of Adjustment, absent a court order to do so.

OOOO

lla

Appendu B

Subsequently, FEIA filed the First Amended Complaint in this

Court, seeking only damages.

Underlying PAWA’s refusal to arbitrate the dispute is

PAWA's position that the Board of Adjustment lacks Jurisdic-

tion to decide the grievance. PAWA claims that representational

issues, namely, whether two related airlines will be treated as a

single carrier for representation purposes, and what should be the

effect of one carrier's collective bargaining agreement with a un-

ion when that carrier acquires or becomes affiliated with a second

carrier, are implicated. When representation issues are involved,

the exclusive statutory decision-making authority of the National

Mediation Board is invoked. The issue now before the Court is

whether the exclusive jurisdiction of the National Mediation

Board over “representational disputes,” pursuant to § 2 Ninth of

the Railway Labor Act (“RLA”), 45 U.S.C. § 152 Ninth, pre-

cludes resolution of the dispute by a Board of Adjustment acting

pursuant to § 204 of the RLA, 45 U.S.C. § 184 and Article 23 of

the parties’ collective bargaining agreement.

Discussion

This action involves the threshold jurisdictional question of

which forum will initially entertain the dispute. FEIA claims that

the present conflict with the defendants is a “minor” dispute, and

under the statutory resolution scheme of the RLA, the Court

should therefore compel PAWA to submit to arbitration before

the Board of Adjustment. PAWA, while agreeing that the dispute

is minor, argues that the dispute is also representational. As

such, it would have to be resolved by the National Mediation

Board, and the Court would consequently lack subject matter ju-

risdiction.

A brief review of the tripartite dispute resolution scheme es-

tablished by Congress in the RLA is necessary for the resolution

of the jurisdictional question presented by this case. The RLA

regulates labor relations on the nation’s railroads and airlines.

12a

Appendu B

The statute defines three types of labor disputes, and establishes

a distinct resolution procedure for each type of dispute.

“Minor” disputes concern the application or interpretation

of an existing collective bargaining agreement. See 45 U.S.C.

§ 184. These disputes are “committed to a grievance-arbitration

process” before an authorized system board of adjustment. See,

e.g., [1UFA v. Pan Amencan World Airways, Inc., 664 F.Supp. 156,

158 (S.D. N.Y.1987), aff'd, 836 F.2d 130 (2d Cir.1988). “Major”

disputes involve the formation of collective bargaining agree-

ments, and the resolution of such disputes proceeds according to

conference and mediation procedures. pursuant to section 6 of

the Act. See 45 U.S.C. §§ 156, 181. Neither party contends that

the present dispute is “major.”

Finally, “representation” disputes involve the definition of a

bargaining unit, and the determination of employee collective

bargaining representatives. “Representation” disputes include

whether two related carriers will be treated as one for representa-

tion purposes, and whether a craft or class must be system-wide

or may be split for representation purposes. See /UFA, supra, 664

F.Supp. at 158. Under Section 2, Ninth of the Railway Labor Act,

45 U.S.C. § 152 Ninth, the National Mediation Board has exclu-

sive jurisdiction over all representation disputes.

In deciding whether a particular labor dispute is minor, ma-

jor or representational, a court 1s guided by certain widely ac-

cepted principles. Justice O'Connor, sitting as a Circuit Justice,

observed that:

(t]he great weight of the case law supports the proposition

that disputes as to the effect of collective-bargaining agree-

ments on representation in an airline merger situation are

representation disputes within the exclusive jurisdiction of

the National Mediation Board

l3a

Append B

Western Airlines v. Intern. Broth. of Teamsters, 480 U.S. 1301, 1305,

107 S.Ct. 1515, 1517, 94 L.Ed.2d 744 (O'Connor, Circuit Justice

1987).

It is also generally recognized that what may be character-

ized as a “minor” dispute over the interpretation of a contract

may also implicate concerns which are representational in nature.

The proper course for a court to followin such circumstances is to

allow the National Mediation Board “alone to consider the post-

merger problems that arise from existing collective bargaining

agreements.” /nt. Bro. of Teamst. Etc. (Air. Div.) v. Tex. Int. Air.,

717 F.2d 157, 164 (Sth Cir.1983). See also Western Airlines, supra,

480 U.S. at 1305, 107 S.Ct. at 1517. Moreover, even though a rep-

resentational dispute may be murky, its presence, together with

the traditionally narrow role of the courts in enforcing the RLA,

requires the conclusion that the Court lacks subject matter juris-

diction over the action. Air Line Pilots Ass'n v. Texas Intern. Air-

lines, 656 F.2d 16, 24 (2d Cir. 1981)

Both parties recognize that many of these same issues, in-

volving these same entities, were resolved by the Court in JUFA,

supra, 664 F.Supp. 156. This action largely turns on the degree

that the factual and legal principles here are the same, or distin-

guishable, from that case. In JUFA, a flight attendant’s union

brought a action against a subsidiary airline (PAWA) and its par-

ent company (Pan Am Corp.), alleging that they violated the Rail-

way Labor Act and a collective bargaining agreement by refusing

to arbitrate a contract dispute. The District Court, Sand, J..,

granted the defendants’ motion to dismiss for lack of subject mat-

ter jurisdiction. The Court held that the union’s claim that flight

attendants on the union’s seniority list had the right to perform

work on flights of another subsidiary airline, which was then be-

ing performed by unrepresented employees. involved a represen-

tation dispute and, consequently, the exclusive jurisdiction of the

National Mediation Board. The Second Circuit subsequently af-

firmed the District Court's decision

l4a

Appendx B

Demand for Work Versus Claim for Damages

Plaintiffs attempts to distinguish /UFA and the present

case ultimately turn upon the notion that seeking contractual

damages calls for a different result than seeking the right to per-

form the work; that representational issues are not implicated in

the former action, while they may be in the latter.’ The Court

does not find this distinction determinative, and it does not strike

at the essence of the JUFA opinion. The JUFA Court stated, “{i]n

essence... . [t]he IUFA flight attendants in this case claim, just as

the pilots in Air Line Pilots Ass'n v. Texas Intern. Airlines, 656 F.2d

16 (2d Cir.1981) claimed, that work on a related carrier should be

assigned to them.” That same basic question underlies any claim

for past damages here: the union claims that work on a related

carrier should have been assigned to them.

Plaintiff seeks to isolate the damage issue from a determina-

tion of representation, but the inquiries are inextricable. In order

to determine whether the plaintiff is entitled to damages, the

court must first conclude that the union is entitled to the work.

Deciding the representation issue is a necessary predicate to de-

termining whether a contractual remedy of damages is appropri-

ate.

The JUFA Court highlighted several factors that are indica-

tive of representational concerns. First, when the application of

previously obtained certification by a union to a newly acquired

subsidiary is not clear, a representation issue may be said to exist.

Second, whether two related carriers should be treated as a single

carrier for representational purposes involves a matter within the

National Mediation Board’s jurisdiction. JUFA, supra, 664

F.Supp. at 158.

’ The Court notes that plainuff's onginal complaint did not make any allusions to

a distinction between damages and demanding the work itself. FEIA de-

manded both the work and damages. After the /UFA decision, plaintuff

amended its complaint to make the claim for damages alone

CEES

lSa

Appendix B

FEIA’s attempts to show the irrelevancy of the aforemen-

tioned factors to the present case in fact demonstrate that FEIA’s

postulated distinction between damages and injunctive-type re-

lief is not meaningful. first, FEIA argues that in JUFA, but notin

the case at hand, the result of the implementation of a contractual

provision was the reassignment of all of one bargaining unit's

work to another, which determined all questions about the repre-

sentation of the first unit by extinguishing it. It is clear, however.

that an award of damages here would effectively require the same

determination, namely, that the FEIA bargaining unit has a supe-

rior and controlling right to the work. An award of the damages

sought here would have the same practical eifect on settling rep-

resentation issues, and extinguishing the possibility of a separate

Ransome bargaining unit.

Second, FEIA notes that the /U’F.A Court had to make a pre-

liminary determination of whether the Ransome flight attendants

should be considered to be on the Pan Am Seniority List. in order

to determine whether any Ransome emplovees needed to be dis-

placed. Again, that same essential determination, whether Ran-

some workers have a right to be considered for the work, is

necessary in the case at hand. To grant the damages which the

plaintiff seeks, the Court must resolve the right to the work

against the Ransome employees

Plaintiff also looks to the Seventh Circuit decision in Hutter

Construction Co. v. Local 139, 862 F.2d 641 (7th Cir.1988) to jus-

tify its argued distinction between a demand for work and for

damages. That case does not support plaintiff's attempt to gloss

over the representational issues raised in this dispute. The Court

initially notes that Hutter arises in an entirely different statutory

context than the case at bar. It has been true for some time that.

under the National Labor Relations Act. certain contract inter-

pretation questions and some related questions (e.g. “unfair labor

practice” or “jurisdictional” claims), normally reserved for reso-

lution by the National Labor Relations Board, may be resolved in

l6a

Appendu B

separate forums simultaneously. See, e.g, Local Union 33, 289

NLRB No. 167, 129 LRRM 1311, 1314 (1988). Under the RLA,

however, there is no such thing as an “unfair labor practice” or a

“jurisdictional” claim, and the FEIA does not indicate any valid

authority under the RLA for violating the National Mediation

Board’s exclusive jurisdiction by submitting representational is-

sues, even when such issues are intertwined with contractual

claims, to a Board of Adjustment

Moreover, even if the different statutory schemes were com-

pletely analogous, Hutter presented a factual and legal situation

itferent from the case at bar. The Hutter court was presented

with two concluded determinations; an arbitral award of damages

to one union under a contract, and a NLRB determination that a

different union had a superior “overall” claim to the work, based

on “non-contractual” factors. Under the National Labor Rela-

tions Act, disputes between two unions over rights to perform

work, or “jurisdictional” disputes, fall under the exclusive juris-

diction of the NLRB. In determining that the first claim was not

jurisdictional, and therefore properly before the arbitral panel.

the Hutter court noted that the first union would have had an inde-

pendent contractual claim to damages “even if” it had performed

the work itself. Hutter, supra, 862 F.2d at 644. This is directly

contrary to the present case; FEIA’s claim for backpay here rests

squarely upon its failure to secure the work in question.

Additionally, the employer in Hutter would have avoided its

contractual liabilities by recharacterizing the dispute as purely

“jurisdictional,” and the Seventh Circuit was concerned by that

inequitable result. Jd. It is not apparent that there would be a

similar result in the case before this Court. If FEIA’s claim for

breach of the scope clause of the collective bargaining agreement

still exists after the representational issue !s addressed by the Na-

tional Mediation Board. a Board of Adjustment can resolve that

dispute. Finally, the separate nature of the contractual and juris-

dictional issues in Hutter led that court to conclude that the

17a

Appendu B

awards were not inconsistent, and that the jurisdictional determi-

nation was not a necessary prerequisite to the award of back pay.

As indicated in the discussion above, this is not analogous to the

situation presented by this case.

FEIA claims that it is not asking the Board of Adjustment to

order a change in the work assignment policy of Pan Am Corp.,

see Plaintiffs Memorandum in Support of Summary Judgment at

14, but it is clear that plaintiff us asking the Board of Adjustment

to determine that every time work is assigned in accord with the

existing policy, Pan Am Corp. will incur liability to the FEIA.

Characterizing the claim as one for only “past” damages does not

alter the practical effect on the prospective work assignments. In

order to end double payments, it is likely that PAWA will try to

terminate the employment of non-FEIA members, or attempt to

recognize the union. A representational stake might even be cre-

ated, if, by an award of damages, Ransome employees felt pres-

sure to unionize. FEIA’s semantic manipulations do not alter the

fact that FEIA is challenging, in a very real way, the work assign-

ment policy of Pan Am Corp.. following its acquisition of Ran-

some.

The case before the Court may not be a traditional dispute

over representation, as the union’s complaint is best cast in con-

tract terms. But, as the Court in /UFA recognized, Ransome emi-

ployees can have “representational state,” regardless of the terms

in which the representational issues are couched. This represen-

tational stake was said to exist in JUFA largely because of the

presence of the two factors noted above, namely the question of

the application of previously obtained certification to Ransome

employees, and whether two related carriers should be treated as

a single carrier for representation purposes. Both of these factors

clearly exist in the present case.

The Court concludes that this case is not distinguishable

from the situation presented in /UFA. There, as here, the funda-

mental organizational and representational rights of workers

18a

Appendu B

were involved. This conclusion is consistent with the purposes

underlying the Railway Labor Act, which was designed explicitly

to protect the rights of employees to organize. or not to organize.

as they saw fit. That act designates the National Mediation Board

as the body to insure that such rights are secured. See, e.g., 45

U.S.C. §§ 151a(2), (3), and 45 U.S.C. § 152, Fourth. The District

Court in [UFA acknowledged that the question there was “close,”

and this case similarly presents a “close” question. The distinc-

tions between that case and this one, however, are not material or

significant for these purposes, and do not alter the conclusion

that the dispute involves representational issues. The Court will

not divert from the /UFA decision.

Conclusion

An issue of representation arises in enforcing the collective

bargaining agreement between the FEIA and PAWA. Itis settled

that a “court may not entertain an action involving . . . a [repre-

sentation] dispute even if it arises in the context of otherwise jus-

ticiable claims.” Int. Bros. of Teamsters v. Tex. Int. Airlines, supra,

717 F.2d at 159. The National Mediation Board has exclusive ju-

risdiction in such representational disputes, and the jurisdic-

tional scheme of the RLA does not permit the submission of such

questions to a Board of Adjustment, on the hope that the result-

ing resolution will not be inconsistent with emplovee representa-

tion rights. The National Mediation Board can, as it did

subsequent to the JUFA decision, accept the union's petition for

an election to determine whether it might represent the Ransome

OTI's.2 The National Mediation Board can also clarify the “cer-

tification” it issued in 1968 to the FEIA, and determine whether

PAWA and Ransome are a “single carrier.”

? In JUFA the Circuit Court was satisfied with the subsequent election, in that it

underscored the correctness of the Distnct Court's decision that representation

issues within the junsdiction of the National Mediation Board were implicated

See, [UFA, 836 F.2d at 131

19a

Appendu B

Regardless of what course of action the National Mediation

Board takes, it must have the opportunity to define how, and by

whom, groups of employees in this airline merger situation are to

be represented. Only then may the union and the employer, or

their arbitrator, establish or interpret contractual working condi-

uons.

For the foregoing reasons, defendants’ motion to dismiss on

subject matter jurisdiction grounds is granted, and plaintiff's mo-

tion for summary judgment ts accordingly denied.

SO ORDERED.

20a

APPENDIX C

Collective Bargaining Agreement:

Article [—Recognition and Scope .

Appendix \ —Letter Agreement.....

PREAMBLE

THIS AGREEMENT made and entered into in accordance with

the provisions of the Railway Labor Act, as amended, by and be-

tween Pan American World Airways, Inc., a New York Corpora-

tion (hereinafter sometimes referred to as the “Company”), and

the class or craft of emplovees, namely the Operations Training

Instructors in the employ of Pan American World Airways, Inc.,

as represented by the Flight Engineers’ International Associa-

tion, PAA Chapter AFL/CIO (hereinafter sometimes referred to

as the “Association”).

WitNESSETH

It is hereby mutually agreed:

ARTICLE 1

RECOGNITION AND SCOPE

A. The Flight Engineers’ International Association, AFL/CIO

is recognized by the Company in accordance with the

National Mediation Board’s Certification in Case #R3984,

dated February 27, 1968 as the sole collective bargaining

agent with respect to rates of pay, rules and working

conditions of Operations Training Instructors, consisting of

two component groups, (1) Flight Engineer Instructors and

(2) Ground School Instructors, all as included in the

certufication and employed by the Company.

B. Operations Training Instructors by component group, shall

exclusively perform the instructional work which is

2la

Append C

conducted by the Company requiring the Services of an

Instructor in the following areas:

1. Flight Engineer Instructors

Simulator Training of Flight Engineers; i.e., initial,

transition, recurrent and voluntary training

programs.

Flight Engineer Support Function as defined in

Article 2, when the requirement for such Support

Function is determined by the Company.

Ground School Classroom and other related

Ground Training of Flight Engineers; i.e., for

initial, recurrent, requalification, aircraft

differences, pre-flight, aircraft familiarization,

pre-line briefing, licensing training, Flight

Engineer PTM, GSF Ground School day and

specialty courses.

2. Ground School Instructors

In the Operations and Flight Crew training areas;

(1) All Emergency Procedures Training and new

Aircraft Familiarization of Flight Service

personnel, both formal classroom and OJT as

defined in Article 2.

(2) Dispatcher Training; i.e., initial, recurrent,

requalification, and aircraft differences

training, both formal classroom and OJT as

defined in Article 2.

(3) Pilot and Flight Engineer training; i.e. initial,

transition, recurrent, .equalification, aircraft

differences and licensing training, both formal

classroom and OJT as defined in Article 2.

In the Maintenance training areas:

(1) Ground training of the Company's

Maintenance personnel in aircraft

cid

Appendix C

maintenance subjects in formal classroom

and associated OJT as defined in Article 2:

le. FAA A & P licensing, main base basic

aircraft courses, Aircraft Genera!

Familiarization (Gen FAM), line station basic

aircraft courses, when conducted in the

United States or its possessions, specialty

courses, TWU skills program and Shop on site

formal training (SOFT) type programs

Operations Training Instructors by component group, shall

share with other Company personnel in the performance otf

instructional work which is conducted by the company

requiring the services of an Instructor in the following areas

1. Flight Engineer Instructors

Procedural Trainer Mock-up training of pilots and

training involving any similar device designed to

accomplish similar training objectives. [his

training is shared with Training Captains

Simulator evaluation of non-Company, contract

training Flight Engineer personnel

Any other duties for which such Instructor ts or

may be qualified, provided that such assignments

shall not involve the downgrading in rates of pay

for any Instructor, except as provided in Articles 10

and 11

2. Ground School Instructors

In the ¢ Jperations and Flight Crew training areas

(1) Procedurat Trainer Mock-up training of Pilots

and training involving any similar device

designed to accomplish similar training

objectives This training is shared with

Training Captains

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24a

Appendx C

United Kingdom, when such training is conducted outside

the United States and its possessions.

It is understood and agreed that the shared areas of training

as set forth in C-2-b above, are to be shared with no more

than one (1) non-covered Instructor based in the Company's

Internal German Service to provide such training for

employees who maintain the Internal German Service

aircraft.

Under conditions of peak training work load, and/or

unanticipated shortage of qualified Instructor personnel, as

defined in Article 2, supervisory personnel, limited to those

who are involved in the direct supervision of such Instructors

at each base, may perform instruction covered by this

Agreement and non-management Check Flight Engineers

employed by the Company may be utilized to instruct and/or

to perform the Flight Engineer Support Function during

periods of peak training work load or unanticipated shortage

of personnel as defined in Article 2.

When assigned by the Company, employees in Instructor

categories covered by this Agreement shall perform

additional instructional work and develop courses and

curricula.

[tis further understood and agreed that the Company, to the

extent it performs work described in paragraphs B and C,

above, with its own employees, will assign such work to

Instructors covered by this Agreement, except as provided in

paragraphs C, D and E.

[t is agreed that nothing herein is intended to prevent the

Company from utilizing technological devices which may

have the effect of reducing the need for Instructor personnel

under this Agreement, provided that any Instructor who is

adversely affected as the direct result of a technological

change shall be given a period of not more than ninety (90)

—_ &

Appendx C

days to qualify for any new position which may be created by

such technological change and shall suffer no loss in pay

during such qualifying periods. It is further agreed that the

Company will use its best efforts to find positions within the

Company for such technologically displaced Instructors

This Agreement shall be binding upon any successors,

administrators, transferees, executors, and assigns of Pan

American World Airways. Inc. (“successors”), and such

“successor” shall employ the OTI’s on the OTI System

Seniority List in accordance with the provisions of this

Agreement between the Company and the Association,

regardless of the nature of transfer of control (including but

not limited to purchase. sale, merger, consolidation,

acquisition, leasing of the operation, reorganization,

arrangement for the benefit of creditors, bankruptcy).

K. Any provisions of paragraphs A. through I., above, to the

contrary notwithstanding

Instructional work described in paragraph B-2-a-(1),

above, may be performed by

a. Flight Engineer Instructors,

b. Operations and Flight Crew Training Ground

School Instructors

c. Maintenance Training Ground School Instructors

at their base, and,

d. as provided in paragraph F., above, by supervisory

personnel;

additionally, subject to paragraphs L and M, below,

such work may be performed by independent contrac-

tors.

2. Instructional work described in paragraphs B-2-a and

C-2-a, above, may be performed by qualified Flight

Engineer Instructors

26a

Appendu C

tod

Instructional work described in paragraphs B. and C.,

above, of other than Company personnel may be

performed by independent contractors, subject to

paragraphs L. and H. below, or, as provided in

paragraph F., above, by supervisory personnel.

The Company may not use independent contractors to

perform any instructional work described in paragraphs B

and C, above, unless both of the following conditions are

met:

1. No Instructor who its listed on the Seniority List, dated

May 24, 1985, and who is actively employed as an

Instructor on March 25, 1986, is on involuntary furlough

Status; and

The instructional work being performed by

independent contractors is of the type described in

subparagraphs K-1 and K-3, above.

Where the above two conditions are met, the Company

may utilize independent contractors, provided that the

Company shall continue to utilize fully Instructors

covered by this Agreement, who are qualified to

perform the said work, consistent with scheduling

limitations and their aircraft or other regular work

assignments.

In the allocation of training assignments under paragraphs

K and L, above, between Instructors covered by this

Agreement and independent contractors performing

instructional work under paragraphs K. and L., preferences

expressed by Instructors covered by this Agreement shall be

granted, to the maximum extent consistent with operational

requirements and the needs of the service, for work

assignments (including those involving travel), hours, and

davs off.

Appendu C

APPENDIX U

February 19, 1986

Mr. John Budd

President, PAA Chapter

Flight Engineers International Association

P.O. Box 5006, Roosevelt Field Mall

Garden City, N.Y. 11530

Mr. James Jouver

Vice President-Instructors, PAA Chapter

Flight Engineers International Association

P.O. Box 5006, Roosevelt Field Mall

Garden City, N.Y. 11530

Gentlemen:

This will confirm the following agreement made by Pan American

Corporation and Pan American World Airways, Inc. with FEIA

in the negotiations leading to the 1986 Operations Training In-

structors Agreement, to run concurrently with the Agreement.

Pan American Corporation, parent of Pan American World Air-

ways, Inc., agrees that it or any successor to it will be bound by

Article 1 of the Pan American World Airways, Inc.—FEIA col-

lective bargaining agreement covering Operations Training In-

structors in the same manner as if references to Pan American

rorld Airways, Inc., in Article 1 read Pan American Corpora-

won.

Eg il

bene

APPENDIX D

FEIA Grievance #6276

Letterhead of O'Donnell & Schwartz

CERTIFIED MAIL

RETURN RECEIPT REQUESTED

Pan American Corporation, and

Pan American World Airways, Inc

200 Park Avenue

New York, New York 10166

Attention Chairman, Instructors’ System Board of

Adjustment, c/o Mr. Bruce Golden

Labor Relations/ Personnel

Re Failure to employ the OTT group in pertorming

the training of Ransome Airline Flight crew and

maintenance personnel: Violation of Appendix

“U" and Article 1 A and B

Dear Mr. Chairman

In accordance with Articles 22, 23 and all other applicable

provisions of the current Agreement covering Operations Train-

ing Instructors (“OTI's”) between Pan American World Airways,

Inc. and the Flight Engineers’ International Association, PAA

Chapter, AFL/CIO, the Association hereby submits the following

grievance. Due to the nature of this grievance, itis being submit-

ted directly to the System Board

FACTS:

Pan American Corporation has acquired Ransome Airlines,

which now operates as a subsidiary of Pan American Corpora-

tion. Ransome is serving cities in the northeast quadrant of the

Appendx D

U.S. It operates approximately twelve aircraft, which utilize the

services of two pilots per aircraft and a cabin crew and mainte-

nance staff of indeterminate number. In operating Ransome, Pan

American Corporation is contractually bound to do so in accord

with, Article 1 of the OTI collective bargaining agreement be-

tween the Association and Pan American World Airways, Inc.

ISSUE:

Has Pan American Corporation violated Article 1 of the

Agreement by the failure of Ransome Airlines to employ the serv-

ices of Pan Am OTI's in accord with Article 1 of the Agreement.

POSITION OF THE COMPANY:

Unknown.

POSITION OF THE ASSOCIATION:

Pan American Corporation has violated Article 1 Aand Bot

the Agreement by the failure of its subsidiary, Ransome Airlines

to employ OTT1’s in accord with the Agreement.

RELIEF REQUESTED:

1. Find Pan American Corporation to have violated Article

1 A and B of the Agreement.

2. Order Pan American Corporation to require Ransome

Airlines to train its personnel in accord with Article 1.

3. Order backpay for all OTI’s damaged by the contractual

violation.

We request that this matter be heard at the September, 1986

meeting of our System Board.

Respectfully Submitted,

Gerry Horwick

Director —Grievances

FEIA, PAA Chapter, OTI's

APPENDIX E

Amendment of Grievance #6276

Letterhead of

PAN AMERICAN FLIGHT ENGINEERS

June 7, 1988

CERTIFIED MAIL

RETURN RECEIPT REQUESTED

Pan American Corporation, and

Pan American World Airways, Inc.

200 Park Avenue

New York, New York 10166

Att: Chairman, Instructors’ System Board of Adjustment

c/o Mr. Bruce Golden, Labor Relations/Personnel

Re: Amendment of FEIA #6276

Dear Mr. Chairman:

I am writing to amend a grievance submitted to you on

August 7, 1986, FEIA #6276, entitled “Failure to employ the OTI

group in performing the training of Ransome Airline Flight crew

and maintenance personnel: Violation of Appendix U and Article

1A and B.”

Please amend the grievance as submitted by eliminating item

#2 from “Relief requested.” FEIA-PAA Chapter has decided not

to seek to require Pan Am Corporation to cause Ransome/Pan

Am Express to distribute the work of training its employees in

accord with Article 1 of the collective bargaining agreement.

Also, please amend the grievance to eliminate any allegation

that Pan Am Corporation has violated Article 1A of the Agree-

ment.

_ ] . . . | eh, 2 r) > + hh S r >

We now allege. in accord with the balance of the grieval

that Pan Am Corporation and Pan American World Airways

Inc

} ] CANTiniina cnmiata seralia 1 ~

. nave violated and are continu! g toviolate Article l(B) of the

Agreement by failing to employ OTI's to train Ransome person-

nel in accord with Article 1(B). As a remedy we ask that Pan Am

Corporation be found to have violated Article 1(B) of the con-

d that OTI's found to have lost work as a result of

. } . : + . ton eh, .

ion De COMpensated for that loss

(george Kanakis

iirector—QGrievances

FEIA, PAA Chapter, OTI's

[om Lambert

Terry Weber

Ted Moeller

George Kanakis

APPENDIX F

AFFIDAVIT

of James Jouver

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

= —_ —— aentaiatt

FLIGHT ENGINEERS’ INTERNATIONA

ASSOCIATION, PAA CHAPTER. AFL-CIO

PAN AMERICAN WORLD AIRWAYS, IN¢

and PAN AMERICAN CORPORATION

STATE OF NEW YORK

COUNTY OF NEW YORK

James Jouver, being duly sworn, deposes and states

1. am a Flight Engineer Instructor in the employ of I

American World Airways, Inc. (“Pan Am”)

2. During the negotiations leading to the current (1986-1988

collective bargaining agreement covering Pan Am’s Operations

[raining Instructors (“OTT's’), an agreement between Pan Am

and Flight Engineers’ International Associauon, PAA Chapter

AFL-CIO (“FEIA” or the “Union”), the National Mediation

Board (“NMB°") certified collective bargaining representative ot

the OTI's , |was a Vice President of FEIA. As such I participated

In negotiations, and am fully familiar with then

34a

Appendu F

3. OTI's at Pan Am are divided into two categories: Flight

Engineer Instructors (“FEI’s”) and Ground School Instructors

(“GSI's”). The responsibility of FEI’s deals, in the most general

terms, with the instruction of Pan Am’s flight engineers as flight

engineers: job duties which only these FEI’s may perform are set

forth at Article 1(B) (1a), (b) and (c). GSI’s at Pan Am are di-

vided into two groups. In the Operations and Flight Crew area,

GSI's “shall exclusively perform the instructional work which ts

conducted by the Company requiring the services of an Instruc-

tor...” (quotation from prefatory sentence of 1(B))in those areas

set forth in Article 2 (A) (1), (2) and (3). These areas are: emer-

gency procedures training (2(aX 1)); dispatcher training; and cer-

tain training of both pilots and flight engineers. GSI's in the

Maintenance area are the only ones who may perform ground

school training of Company maintenance personnel in those ar-

eas enumerated in Article 1(BX2\b).

4. The work preservation provisions of the OTT Agreement,

called “Scope” provisions, in accord with industry practice, have

been included (with minor modifications) in the OTI Agreement

for approximately ten years. Numerous grievances have arisen

regarding alleged violations of the Scope provisions; many re-

sulted in payments to members of the bargaining unit to compen-

sate them for work assigned to non-bargaining unit members,

whether or not they were Pan Am employees, in violation of the

Scope provisions. ,

5. At the time of the negotiation of the last collective bar-

gaining agreement, FEIA expressed to Pan Am the need to seek

to place the “Scope” provisions of the Agreement on a firmer ba-

sis. The reason for this was the earlier establishment of Pan Am

Corp. as the holding company for Pan Am: the Union feared not

only that work already “belonging” to its OTI’s under the OTI

Agreement would be done for and by non-Pan Am subsidiaries ot

Pan Am Corp., but also that Pan Am Corp. would add new in-

structional work only to non-Pan Am subsidiaries where they

would not be done by Pan Am’s OTI’s, thus depriving the OTI

35a

Appendu F

unit of the opportunity to grow or at least to substitute for lost

work.

6. Flight engineers, who are the third men in the cockpit, are

steadily diminishing in numbers at Pan Am as well as at other air-

lines. New aircraft. such as the B-767, require only two pilots.

Since much OTI work involves instructing flight engineers, the

long run health of the bargaining unit depends on the addition of

new work to the bargaining unit

7. As a result of negotiations on this subject, a letter dated

February 19, 1986 was signed by FEIA, Pan Am, and Pan Am

Corp. and was appended to the Agreement as Appendix U. The

letter stated in relevant part:

“Pan American Corporation, parent of Pan

American World Airways, Inc.. agrees that it or

any successor to it will be bound by Article 1 of

the Pan American World Airways, Inc.—FEIA

collective bargaining agreement covering Opera-

tions Training Instructors in the same manner as

if references to Pan American World Airways,

Inc., in Article 1 read Pan American Corpora-

tion.

The letter agreement was a significant one for FETA, and en-

abled the Union to sign the Agreement in spite of concessions it

contained.

James Jouver

Sworn to before me this

10th day of November, 1988

Notary Public

APPENDIX G

AFFIDAVIT

of David Rosen

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

ENGINEERS’ INTERNA NA

CIATION, PAA CHA AFL-CIO

TE OF NEW YORK

NTY OF NEW YORK [

d B. Rosen, being dulv sw gdeposes and States

[ am an attorney the of O'Donnell & Schwartz

O Flight Er YInee\:rs C onal Association PA \

r, AFL-CIO (“FEIA” or the nion’) during the period

SUurTt C gtne dispute w € Sis the subject of

\ reiev les, I \ Ss Deen DO dg DY C ec

v py apreeme < Agree < ed reor y

re C dle SS A e te S

Appendu G

refused to permit the grievance to be resolved by arbitration ab-

sent a court order compelling them to do so, arguing that the

Board of Adjustment had no jurisdiction over it

9. On June 7, 1988, FEIA amended its grievance (see Ex. E to

First Amended Complaint)

10. Defendants did not alter their position regarding t

ine

grievance, despite this amendment

11. The work which Pan Am Corp. promised to assign “ex-

clusivelv” to Pan Am OTI-GSI's has continually been assigned to

non-Pan Am OTI's since the a

UW Ut

, , vs , | on =)

he acquisition of Ransome

David B. Rosen

39a

APPENDIX H

STATUTES: RELEVANT PROVISIONS OF

THE RAILWAY LABOR ACT

Section I(a), 45 U.S.C. § 1S1(a)

§ ISla. General purposes

The purposes of the Act are: (1) To avoid any interruption to

commerce or to the operation of any carrier engaged therein: (2)

to torbid any limitation upon treedom of association among em-

ployees or any denial as a condition of employment or otherwise,

of the right of employees to join a labor organization; (3) to pro-

vide for the complete independence of carriers and of employees

in the matter of self-organization to carry out the purposes of this

Act: (4) to provide for the prompt and orderly settlement of all

disputes concerning rates of pay, rules, or working conditions; (5)

to provide for the prompt and orderly settlement of all disputes

growing out of grievances or out of the interpretation or applica-

tion of agreements covering rates of pay, rules, or Working condi-

Section 2 First, 45 U.S.C. § 152 First

§ 152. General duties

First duty of carriers and employees to settle disputes. [t

shall be the duty of all carriers, their officers, agents, and employ-

ees to exert every reasonable etfort to make and maintain agree-

ments concerning rates of pay, rules, and working conditions, and

to settle all disputes, whether arising out of the application of

such agreements or otherwise, in order to avoid any interruption

to commerce or to the operation of any carrier growing out of any

dispute between the carrier and the emplovees thereof

40a

Append H

Section 2 Ninth, 45 U.S.C. § 152 Ninth

Ninth. Disputes as to identity of representatives; designa-

tion by Mediation Board; secret elections. If any dispute shall

arise among a carrier's employees as to who are the representa-

tives of such employees designated and authorized in accordance

with the requirements of this Act, it shall be the duty of the Me-

diation Board, upon request of either party to the dispute, to in-

vestigate such dispute and to certify to both parties, in writing,

within thirty days after the receipt of the invocation of its services,

the name or names of the individuals or organizations that have

been designated and authorized to represent the employees in-

volved in the dispute, and certify the same to the carrier. Upon

receipt of such certification the carrier shall treat with the repre-

sentative so certified as the representative of the craft or class for

the purposes of this Act. In such an investigation, the Mediation

Board shall be authorized to take a secret ballot of the employees

involved, or to utilize any other appropriate method of ascertain-

ing the names of their duly designated and authorized representa-

tives in such manner as shall insure the choice of representatives

by the employees without interference, influence, or coercion ex-

ercised by the carrier. In the conduct of any election for the pur-

poses 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 designate the employees

who may participate in the election. The Board shall have access

to and have power to make copies of the books and records of the

carriers to obtain and utilize such information as may be deemed

necessary by it to carry out the purposes and provisions of this

paragraph.

Section 3 First (i), 45 U.S.C. § 153 First (1)

(i) The disputes between an employee or group of employees

and a carrier or carriers growing out of grievances or out of the

interpretation or application of agreements concerning rates of

I E-"-"SCC A

4la

Appendu H

pay, rules, or working conditions, including cases pending and

unadjusted on the date of approval of this Act [enacted June 21,

1934], shall be handled in the usual manner up to and including

the chief operating officer of the carrier designated to handle such

disputes; but, failing to reach an adjustment in this manner, the

disputes may be referred by petition of the parties or by either

party to the appropriate division of the Adjustment Board with a

full statement of the facts and all supporting data bearing upon

the disputes.

Section 3 First (m), 45 U.S.C. § 153 First (m)

(m) The awards of the several divisions of the Adjustment

Board shall be stated in writing. A copy of the awards shall be

furnished to the respective parties to the controversy, and the

awards shall be final and binding upon both parties to the dis-

pute. In case a dispute arises involving an interpretation of the

award the division of the Board upon request of either party shall

interpret the award in the light of the dispute.

Section 204, 45 U.S.C. § 189

§ 184. System, group, or regional boards of adjustment

The disputes between an employee or group of employees

and a carrier or carriers by air growing out of grievances, or out of

the interpretation or application of agreements concerning rates

of pay, rules, or working conditions, including cases pending and

unadjusted on the date of approval of this Act [enacted Apr. 10,

1936] before the National Labor Relations Board, shall be han-

dled in the usual manner up to and including the chief operating

officer of the carrier designated to handle such disputes; but. fail-

ing to reach an adjustment in this manner, the disputes may be

referred by petition of the parties or by either party to an appro-

priate adjustment board, as hereinafter provided, with a full

statement of the facts and supporting data bearing upon the dis-

putes.

42a

Appendu H

It shall be the duly of every carrier and of its employees, act-

ing through their representatives, selected in accordance with the

provisions of this title [45 USCS §§ 181 et seq.] to establish a

board of adjustment of jurisdiction not exceeding the jurisdiction

which may be lawfully exercised by system, group, or regional

boards of adjustment, under the authority of section 3, Title I. of

this Act [45USCS § 153].

Such boards of adjustment may be established by agreement

between employees and carriers either on any individual carrier,

or system, or group of carriers by air and any class or classes of its

or their employees; or pending the establishment of a permanent

National Board of Adjustment as hereinafter provided. Nothing

in this Act shall prevent said carriers by air, or any class or classes

of their employees, both acting through their representatives se-

lected in accordance with provisions of this ttle [45UCS §§ 181 et

seq.]. from mutually agreeing to the establishment of a National

Board of Adjustment of temporary duration and of similar lim-

ited jurisdiction.

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.