Petition for Writ of Certiorari — Brilliant v. United States

Supreme Court brief1962

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IN THE

Supreme Court of the United States

Ocroszr Tunx, 1961

F.icatT 8 INTERNATIONAL’ AssoctaTion, AFL-CIO,

CAL. Cuaprer, PETITIONER

vs. a!

ContrxzntaL Am Lives, o. n

Association Er on, AFL-CIO, RESPONDENTS

PETITION FOR A WRIT OF E33

UNITED STATES COURT OF. APPEALS FOR

THE NINTH een

I. J. Gnoxrmn, ,

Herman STeRNsTeIn, —

WLan B. Pees, ae :

2 1001 Connecticut 2 N. W.,

— Washington, D. C.

5 Cuanizs K. Sam,

ig 1.621 West 9th Street,

Los Angeles, California.

Attorneys for Petitioner.

8 1 AND Sranyerem,

1001 Connecticut Avenue, N. W.,

Washington, D. C. ,

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OPINION BELOW 1 eee eee

JURISDICTION bo ON 8 5

QUESTIONS PRESENTED 2

STATUTORY PROVISIONS INVOLVED ocinne 2

STATEMENT a 2

REASONS FOR GRANTING THE WRIT cnc 7

CONCLUSION ...... 20

APPENDICES ....... 21

&. Opinion of Court Below ...... wen. 21

ely B. Statutory Provisions Involved 32

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2 *

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AUTHORITIES

Automotive Supply Co. Inc., 119 NLRB 1074 . 8 16

Fish gold v. Sullivan Dry Dock € Repairs corp, 328

U.S. 725 (1946) .........—...e. 13

Franks Bros. Co. v N. L. R. B., 321 US. 702 1944) . 16

**. Me Kissock, N. J. Sup. Ct., 81 A (2d) 480... 19

international Assn.. of ‘Machinists v. N. LBB. 311

Tt eee aes 16

J. I. Case Company v. „LBB. 321 U.S. 332 (1944).

Kohler Co., 128 NLRB 1062 .. — — 16

. Labor: Board v. mane Greyhcund Lines, 303

.S. 261 (1938) ...... —.— 8 13

Medo Photo Supply Co. v N.L.R.B., 321 Us. 678.

(1944) . 3 14

o-—

National Licorice Co. v. NLR. B., 309 U.S. 350 (1946) 1116

N. L. RB. v. Blanton Co., 121 F (24) 564 (CA 8, 1941) 17-18

N.L.R.B. va Bradford Dyeing Association, $10 US.

319 (1940 9 15

V. LR. B. v. Idaho Ego Producers Ine. 229 F 2d) 821 5

(CA 9, 1956) . „ 16

VL. R B. v. Lambert, 211 F (2d) 91 (C48, 1954)...... 16

VL. R. B. v. Meria Textile Mills, Inc., 339 v. S. 563

(1980) — 1¶6

v. L. R. B. v. Norfolk Shipbuilding C Co., rie F (2a) 812

(CA4, 1949) . i AOE TE 16

| N LRB. v. Phdamon Laboratori s, Inc. F (200-9

ie 2 2624. ((A 2, 1962)... b. 16

“NLRB. v. Swift & Co., 162 F (2d) 575 5S 3, 1947). 16

K. L. A. B. v. Foicer Hosiery Mills, 180 ( Y..

(CA. 3, 1950) v2üñ(.....—bC. er, 16 74

Order. of Railroad Tele graphe rev. Ry. 3 9

Agency,.33 321 ESS. 342 (1944) — ———— 9 *

Beni Steel Cast ing Co. v. NLRB. 160 F (2d) 388,

(CA 8, 1947) ——.—.—. ——— .f— *. 16

ro 8 Pacific Terminal Company v. C. C, /219

„ .S. 498 (1911) — * .. : 13

Steele v: Louisville & Nashville R. R., 321 ‘US. 192

(1944) eee, i * . —ſ 10

Tennessee V alley 8 can bons 83 NLRB |

—— re soseeee 3 —ꝗꝗ . . . yf eee ee „„ 17

4 .

m & N. OR Co. v. Brotherhood of Radway é

Steamship Clerks, 281 U.S, 548 (1930) ... 10-14

U nited States v. TransMissouri Freight 1

1 1 U.S. 290 * ——— — 132

- Virginian Ry. V System Federation No. 40, 300 US.

515 d —— ee B 9-10, 10-13

W ‘allings. Pies V. Reuter, Inc., 321 U.S. 671 (1944). - 13

West Teras Utilities Co. v. N.LR. B., 184 F (2d) 233

(CA DC, 1950) «..-.-+--+ — —

. ice ee a“

STATUTES

National Labor Relations Act, 1947 (Act of June 23, os

1947, 61 Stat. 136, as amended, 29 U.S.C. 89 141

et seg ;

Railway Labor Act (Act of May. 20, 1926, 44 Stat. 577,

as amended, 45 U.S.C. §§ 151 et seq.)

Section 2, Third *

‘Section 2, Fourth eae | | —

Section 2, Nint.... od

Section 2, Tenth —— — — . a f 3

4 5 5

8 —

Supreme Court of the Anited States

a Octoser Term, 1961 8

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Fucat Exoweers’ INTersaTionaL Association, AFL-CIO,

, CAL CHaprTer, PETITIONER

vs.

ConTINENTAL Ain Lrxes, Isc: Axb Tue Am Lixe Priors

AssociaTION INTERNATIONAL, AFL-CIO, KesponDENTS

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Ninth Cireuit

To THE HononaBLe THE CHIEF Justice or Tue Ur States

AND THE ASSOCIATE Justices or THE SuPREME Court

or THE Unstrep STATES:

Petitioner, Flight Engineers’ International Association,

AFL-CIO, CAL Chapter, prays that a writ of certiorari

issue to review the decision of the United States Court of

Appeals for the Ninth Cireuit.

OPINION BELOW

The opinion of the Court below (Appendix A, infra, p. 21)

is not yet reported officially or unofficially.

. JURISDICTION

The jurisdiction of this Court is invoked under 28 U.S.C.

1254. The judgment of the Court below was entered on

October 23, 1961. Petitioner filed a timely. motion for re-

hearing en bane to the Court below which was denied

December 7, 1961. By an Order dated March2, 1962, this

Court extended the time for the filing of a petition for writ

of certiorari iu this cause to and including March 27, 1962.

Jurisdiction of the District Court was based primarily

on 28 U.S.C. §§ 1331, 1337, and on 28 U.S. C. § 2201 et seq.

— QUESTIONS PRESENTED)

1: Does the duty of a Federal Court to enforce by appro-

priate’ decree the statutory scheme to promote collective

bargaining and to protect the freedom of choice of bargain-

_ ing representatives under the Railway Labor Act, 45 U.S.C.

§ 151, et seq., survive a course of conduct by a carrier, in

violation of the Act, whereby said carrier succeeds, through.

bargaining with the individual employees, in obtaining a

dissolution of the Union the employees had theretofore

sélected as their collective bargaining representat vet?

2. May-a carrier subj&t to the Railway Labor Act, as

justification for making moot a snit to compel bargaining

with the labor organization freely chosen by his employees

to represent them, set up the loss of a majority or the dis-

solution of that labor organization which the employer

induced by conduct violating the Act? - |

| STATUTORY: PROVISIONS INVOLVED

The statutory provisions involved in this case are set out

in Appendix B. p. 32, infra. . ; an

Z ö STATEMENT. 5 |

Petitioner (CAL Chapter) is a labor organization which

‘bargained for many years with respondent Continental Air

Lines, Inc. (Continental) on behalf of its members, the

flight engineers emptoyed by Continental. Respondent Air

Line Pilots Association (ALPA) is a labor organization

which has represented the pilots employed by Continental.

1 References designated . R'“ are to the Transcript of Record in the Court

below which is on file with the Clerk of this Court. :

2 In 1953 CAL Chapter filed an application for certification by the National

- Mediation Board under the Railway Labor Act. However, no election was

held and no certification issued because Continental notified CAL Chapter that

it would voluntarily extend recognition since it agreed that CAL Chapter had

Leen designated by à majority of the flight engineers. Ou that basis, the”

National Mediation Board closed its files in the representation case. (R. 30,

163.) °

34-36.) 5

On May 29, 1959, during the life of a collective bargain-

ing agreement with CAL Chapter covering all flight engi-

neers in its employ, Continental entered into an agreement

with ALPA establishing terms and conditions of employ-_

ment for flight engineers assigned to turbo jet aireraft dif-

ferent from those provided in the existing agreement with

CAL Chapter.“ In essence, this agreement, which was to go

into effect: upon the expiration of the tlen-existing agree-

ment with CAL Chapter, changed the job title of the turbo-

jet flight engineer to Second Officer.“ and provided that

Hontinental would recognize ALPA. instead of CAL Chap-

ter, as the collective bargaining representative of the

turbo- jet flight engineers, that the rates of pay, rules, and

working conditions for that flight engineer job would be

established under the ALPA agreement, and that personnel

assigned to that flight engineer job would be assigned from

the ALPA seniority list, instead of from the seniority list

established under the CAL’ Chapter agreement. (R. 6-7,

- CAL Chapter was not a party to, or advised of, the nego-

tiations between Continental ‘and ALPA which produced

that agreement of May 29, 1959, and it was not consulted

with respect to that agreement, despite the fact that said

agreement covered matters“ with respect to which CAL

Chapter 72 exclusive bargaining representative. (R.

Nor

6.7. 36.) was there any proceeding instituted by ALPA |

under the Railway Labor Act to determine whether any

flight engineers in the employ ef. Continental desired a

change in their. bargaining representative. (R: 33.)

In the months that followed, Continental embarked upon

a course of condyct designed to implement this agreement

and to remove CAL Chapter as the representative of the

flight engineers assigned to turbo-jet aircraft. This course

of 3 included: (1) An attempf to solicit the individ-

Continental began its operation’ of turbo-jet sireraft on June (, 1950.

(R 95.) Ite then-existing collective bargaining agreement with CAL. Chapter

specifieally covered flight engineers assigned to such aircraft. cn. 5, 20 210,

281-282, 326-328.

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ual flight engineers in order to persuade them · to place their

names on the ALPA seniority list and to agree that ‘the

flight engineers assigned to turbo-jets would be covered by

the ALPA agreement. (R. 7-8, 37-38); (2) An attempt to

negotiate new agreement with CAL Chapter which would

eliminate all of the existing referenees to turbo-jet flight

engineers and would no. longer be. applicable to such per-

Sonnel. (R. 8, 38-39) ; (3) A flat refusal to continue to rec-

ognize and bargain with CAL Chapter with respect to any

mutters affecting flight engineers assigned to turbo-jet air-

craft, giving as its reason the fact that The Company has

a valid contract dated May 29, 1959, with the pilots which

it must honor.“ (R. 8-9, 39, 42-49, 285); (4) The annoutice-

ment of a ‘‘fockout”’ ultimatum to the effect that begin-

ning on May 28, 1960, flight engineers would not be per-

mitted to continue to work on turbo-jet aircraft unless they

agreed to be placed on the ALPA seniority’ list and to be.

represented by ALPA instead of CAL Chapter. (R. 9-10,

214); and (5) The execution of further amendments to the

agreement with “ALPA—again witheut any consultation

with CAL Chapter—providing, inter alia, for pay increases

for those flight engineers who yielded to the ultimatum and.

elected to. work as turbo-jet engineers under the ALPA

> agreement. (R. 87, 101, 915-216.)

The instant suit was instituted in the United States Dis-

trict Court for the Southern District of California on June

1, 1960. (R. 15.) In this-suit CAL Chapter seeks a declara-

tion that the agreement of May 29, 1959 was in violation of

the Railway Labor Act insofar às it had the intent and sub-

sequent effect of depriving flight engiffeers in the employ of

Continental of their right to select their own collective bar-

gaining representative, and of-causing Continental to refuse

to bargain with CAL Chapter for all of the craft oy class

represented by that Union. It seeks to. enjoin AUPA and

‘Continental from implementing that agreement which cul-.

minated in the lockout of the flight engineers on May 28,

1960, and from entering .into similar agreements in the

future which likewise recognize ALPA instead of CALL

—

Chapter as the exclusive representative of flight engineers.

It seeks.an order compelling Continental to restore the

flight engineers to their positions, to resume recognition of

CAL Chapter for. all of its flight engineers, and to bargain

collectively with CAL Chapter with: respect to all of its

flight engineers. (R. 12-15.)

On July 13, 1960, the District Court denied the motion

of CAL Chapter for a preliminary. injunction on grounds

(R. 299.305) that are not germaine to the instant petition

sinee they were not relied upon, by the Court below. f

In due course, CAL Chapter filed an appeal in the Court

below. Meanwhile, beginning on or about June 30, 1960 the

flight engineers in the employ of Continental struck in pro-

test against the aforementioned lockout and against the

unlawful refusal of Continental to continue to deal with

C, Chapter as the exclusive bargaining representative of

‘its flight engineers.“ During the course of the strike Con-

tinental advised CAL Chapter that the employment status

of all the strikers had been terminated and that, as à result,

Continental would, no longer recognize CALL Chapter as

the representative of-any of its employees. CAL Chapter |

replied refusing to recognize the validity of the discharges

or of the refusal to deal with the Union representing the

striking flight engineers. | ; é

However, on or about. October’ 10, 1960, while the appeal

in the instant case was pending in the Court below, Con-

tinental. with the aid of ALPA Sook the final step in its

campaign to destroy CAI. Chapter. Continental entered

into an agreement with ALPA and some of the individual

striking flight engineers Han agreement fo which “CAT

Chapter is vot-a party—terminating the strike on certain

condlitions including the condition that the CAL: Chapter

would: be dissolved, and replaced by ALP as the bargain-

— *

4.The pertinent facts concerning the events following the strike of June 30,

1960 which are summatized above are set forth in the affidavit of Glenn B.

Iverson attached to the „Opposition of Appellant To Motions of Appellees

To Dismiss Appeal’’ which is on file with the Clerk of this Court.

5 As the Court below correctly observed, ‘‘ Whether it was signed by all of

them is in dispute.“ (See infra Appendix A, p. 25.)

ing representative, and the condition that the strikers

would select one of three options“ each of which involved

an individual agreement either to return to work and receive

certain guarantees which could involve as much as $20,000

in a lump sum payment, or not return to work and receive

‘‘severance pay’’ of $10,000.* Steps were taken by certain

of the members of CAL Chapter who favored this proposal

with a view to dissolving the CAL Chapter; but petitioner

has maintained, and continues to maintain, that: (1) the

attempted dissolution was invalid, and (2) a valid trustee-

ship over its CAL Chapter was established by the Flight

Engineers’ International Association for the purpose, inter

alia, of continuing the prosecution of this suit and thereby

vindicating the rights under the Railway Labor Act which

the conduct of Continental and ALPA have destroyed.

Faced with no reasonable alternative, the individual strikers

each succumbed to the monetary lure and signed one or

another the options. Obviously, however, none of them had

the authority by his individual agreement to waive the

statutory right of CAL Chapter to insist that Continental

bargain’ with CAL Chapter and refrain from conduct de-

signed to force ALPA upon the flight engineers.

After the éccurrence of the facts just mentioned, respond-

ents moved in the Court below to dismiss the appeal for’

mootness, on the assertions that: (1) CAL Chapter is no

longer in existence, (2) the dispute involved’ in the lawsuit

6A copy of this agreement appears as Exhibit 5 to the affidavit of Roy A.

Berry attached to the ‘‘Motion To Dismias By Appellee Air Line “Pilots

Association, International, AFL-CIO’’ in the Court below which is on file

with the Clerk of this Court. .

7 In its opinion the Court below considers and rules upon the question of

whether the dissolution of the CAL Chapter was effective and proper and the

question of whether the trusteeship was timely and lawful. For the reasons

discussed below in this petition, it is not necessary for this Court to resolve

those, questions, and this petition does not seek to place in issue the merits of

the decision of the Court below on those questions. The ultimate decision of

the Court below dismissing the appeal as moot cannot be sustained even if it

be arsunied, arguendo, that CAL Chapter was dissolved in accordance with

proper procedure and all necessary votes under the union 's by-laws, and even

if no trusteeship had thereafter been established.

—

* ¢

has been settled. and (3) CAL Chapter represents no pres-

ent employees vi Continental and any former employees.

it purports to represent have accepted termination pay and

are now estopped to claim a right of employment.

The Court below dismissed the appeal, and remanded the

case with instructions.to dismiss the case. It found that the.

case is moot because CAL Chapter has been dissolved and

therefore „the sole plaintiff and appellant no longer ex-

ists.“ Without discussion, it also accepted the two addi-

tional reasons on the basis of which respondents had urged

mootness, namely that the dispute has been settled, and

that CAL Chapter no longer is a majority representative

of any Continental employees. (Appendix A, infra, p. 30.)

It ix from this decision that petitioner appeals to this

Court.

REASONS FOR GRANTING THE WRIT

“Several of the reasons’ for which this Court will normally

grant review of decisions of U. S. Courts of Appeals

combine to justify granting the writ sought in the instant

„ nse. The issue is of major importance in the administra-

tion of the Railway Labor Act; and the decision of the Couft

helow is contrary to precedent established by this Court,

and in conflict with decisions by other U. S. Courts of

Appeals. : | f

Consider the nature of this case in its essential outline:

At a time when CAL Chapter is the duly designated and

recognized majority representative of all of the flight en-

wineers in the employ of ‘Continental, a carrier subject to

the Railway Labor Act, Continental embarks upon a pro-

gram, the necessary and intended effect of which is to sup-

plant CAL Chapter as the bargaining representative of a

part of the eraft or class it has theretofore represented,

and to compel the employees involved to aceept representa-

tion by ALPA. To achieve that end. Continental deals

with ALPA on matters with respect to which it is required

to deal with CAL. Chapter, engages in individual bargain-

ing with flight engineers in an effort to persuade them to

go along with the arrangement Continental has made with

ALPA, refuses to continue to recognize and negotiate with

CAL Chapter on matters with respect to which CAL Chap-

ter is the only authorized reprensentative, locks out those

flight engineers who refuse to accept Continental’s ultima-

tum to accept ALPA representation and the ALPA contract

‘or get out, and grants wage increases to those who do accept

this ultimatum. CAL Chapter brings suit in a federal

Court seeking to restrain and set aside this conduct, charg-

ing—with such obvious justification—that this conduct is

in violation of the Railway Labor Act. But, before any

court can determine the merits of this charge, Continental

- gueceeds—again by negotiating with individual flight engi-

neers in derogation of the rights of CAL Chapter and of

those it represented—in getting some of the flight éngineers -

individually to renounce CAL Chapter; to agree to termi-

nate the litigation, and to,take steps in an effort to dissolve

that union. Believing that it has now successfully com-

pleted the process of destroying (‘AL Chapter, Continental

and its co-conspirator ALPA, then urge that the litigation ~

initiated by CAL Chapter has been rendered moot because,

as Continental and ALPA claim, CAL Chapter no longer

represents anyone, indeed no longer exists, and the dispute

has been settled. The Court below accepts this contention

concerning itself only with the irrelevant issues of whether

in fact CAL Chapter was dissolved in accordance with the.

by-laws of the Union, and whether any entity survived to

prosecute its suff, aud ignoring completely the relevant

issue of whether, assuming CAL chapter was dissolved.

the dissolution is attributable to conduct of Continental “in

violation of the Railway Labor Act, and the related rele-

vant issue of whether, in any event, it is necessary that the

suit be held to survive the alleged dissolution in order to

remedy the unlawful conduct committed and complained

of before the alleged dissolution occurred:

Sections 2, Third, 2, Pourth, and 2, Ninth of the Railway

Labor Act (App. B, infra. pp. 32, 33) grants to the employ-

ees of acarrier subject to the Act the right to select their rep-

Act in these terms:

a collective bargairing represe

resentatives for collective bargaining without interference

or coercion by the ‘carrier, and imposes upon the carrier

the duty to refrain from individua: bargaining and to-bar-

gain exclusively with the labor organization freely, selected

by the employees in a particular craft or class. In ir-

ginian Ry. v. System Federation No. 40, 300 U.S. 515, 548

(1937), this Court interpreted the relevant sections of the

“The obligation imposed on the employer by sec-

tion 2, Ninth (45 U.S.C.A. § 152, subd. 9), to treat

with the true representative of the employees as des-

ignated by the Mediation Board, when read in the

light of the declared purposes of the act, and of the

provisions of ‘section 2, Third and Fourth (45 U.S.C.

A. § 152, subs. 3, 4), giving the employees the right

to organize and bargain collectively through the 8

resentative of their own selection, is exclusive. It

imposes the affirmative duty to treat only with the

true representative, and hence the negative duty to

treat with no other. — .

— — .

The specific conduct of engaging in bargaining with the

individual employees at a time when they have designated ö

ntative—conduct which is.

at the heart of the process by which Continental attempted

to destroy CAL Chapter—was declared unlawful under the

Railway Labor Act in Order of Railroad Telegraphers v.

Railway Express Agency, 321 U.S. 342 (1944). In reaching

the conclusion that individual . bargaining is the very an-

tithesis of the kind of collective bargaining the Act com-

mands, this Court specifically cited and relied upon its de-

eision in J. 12 Case Company v. N. I. N. B., 321 U.S. ;

(1944), where the same conclusion was found applicable to

the National Labor Relations Act, 29 U.S.C. § 141 et seq. In

that case this Court said:

Individual contracts, no matter what the cireum-

stances that justify their execution or what their

terms. may not be availed of to defeat or delay the

procedures prescribed by the, National Labor Rela-

tions Act looking to collective bargaining, nor to er-

clude the contracting employer from a duly ascer-

— —

tained bargaining unit; nor may tliey be used to fore-

stall bargaining or to limit or condition the terms of

the collective agreement.“ (321 U.S. at 337 [Em-

phasis added].)

See also: Steele v. Louisville d. Noshvile R. N.,

321 U.S. 192, 200 (1944). * ¢

There can be no doubt that the kind of conduct of which

Continental is charged in this suit—ie., the refusal to con-

tinue to recognize the majority representative of the flight

engineers, the attempt to coerce the flight engineers into

changing representatives, and the individual negotiation

with flight engineers—is clearly proscribed by the Railway

Labor.Act. Moreover, this Court has made it plain that it

is within the power of the federal courts, in a suit such as

he instant one, to enforce by appropriate decree these man-

dates and prohibitions of the Act. That is the central lesson

of Teras d . O. R. (d. v. Brotherhood of Railway and

Steamship Clerks, 281 U.S. 948 (1930), ‘and Virginian Ry..

v. System Federation, supra. In the latter case this Court

said: . sas 5

“There ix no want of capacity in the eourt to direct

complete performance of the entire obligation; both

the negative duties not to maintain a company union

and not to negotiate with any representative of the

employees other than respondent and the affirmative

duty fo treat with respondent.”’ (300 U.S. at 550.)

What is more—and we now touch difectly on consider

tions pertinent Jo the issue of mootness—this Court hes

pointed out that in the enforcement of the obligations of a

carrier under the Railway Labor Act the federal courts are

dealing with the public interest and not with private rights,

and that as a consequence the tests of when a court will or

will. not grant relief must be different from what obtains

when the enforcement of private rights are involved. Thus

in Virginian Ry. v. Systew Federation, supra, this Court

said: : a . a

A „More is involved than the settlement of a rio the

controversy without appreciable consequences to the

public. The .peaceable settlement of labor contro-

—

versies, especially where they may seriously impair

the ability of an interstate rail carrier to perform its

services to the public, is a matter of public concern.

That is testitied to by the history of the legislation

now before us, the reports of committges of Congress

having the proposed legislation in charge, and by

our common knowledge. Courts of equity may, :

frequently do, go mich farther both to give and wtth-

hold relief in furtherance of the public interest than

they are accustomed to go whenonly private interests——

are invelved,”” (300 U.S. at 552 mphasis added}.)

When a fedefal court enforces, by an equitable decree,

the obligations and proscriptions of the Railway Labor

Act; it acts in the same capacity as the Xational Labor Re-

‘lations Board under the National Labor Relations Act. As

to the public interest involved, and. in particular as to the

fact that such public interest supersedes even the desire

of the individual employees to.waive their rights, this Court

has said in ‘National Licorice Company v. X. I. R. B., 309

U.S. 350 (1940), in words that are particularly cogent here:

„The Bourd Acts in a publie capacity to give effect

to the declared public policy of the Act to eliminate

and prevent obstructions to interstate commerce by

encouraging collective. bargaining and by protecting

the ‘exercise by workers of full freedom of associa-

tion, self organization, and designation of represgnt-

atives of their ‘own choosing for the purpose of ne-

gotiating the terms and conditions of their employ-

ment <1. The immediate object of the pro-

ceeding ix to prevent unfair labor practices which,

as defined by 7. Sure practices tending to thwart

the declared policy. of the Act.”’

„ * 0 * * 2

„Here the right axserted by the Board is not one

arising upon or derived from the contracts bet ween

petitioner and its employees, The Board asserts a

public right vested in it as a public body, charged in

the public interest with the duty of preventing un-

fair labor practices. The public right and the duty

extend not only to the prevention of unfair labor

practices by the employer in the future, but to the

prevention of his enjowment of ary advantage which

. ‘Ss

ca ae hs

he has gained by violation of the Act, whether it be

a company union vr an unlawful contract with em-

ployees as the means of defeating the statutory policy

and 1 Obviously employers cannot set at

naught the National Labor Relations Act by induc-

ing their workmrw to agree not to demand perform-

- ance of the duties which it tmposes or by insisting,

more than in a private litigation, that the employer 8

obedience to the Act cannot be compelled in the ab-

sence of the workers who have thus renounced their

rights. (309 U.S. at 362- Emphasis-added ].)

Tue instant suit, therefore, was brought to vindieate the

public. interest, embodied in the Railway Labor Act, in pro-

moting collective bargaining, and in preventing carriers

from interfering in the free choice of representatives of

their employees for collective bargaining. As in National

Licorice, the suit was aimed at preventing the violations

~ from continuing and at preventing Continéntal from the

‘‘enjoyment of any advantage which lit]! has gained by

violation of the Act.“ The Court below wholly ignored the

publie interest aspect of this litigation in ruling that the suit

had become moot as a result of the unlawful agreements

between Continental and the individual flight engineers.

Yet, this Court has, on more than, one occasion, ruled

that litigation which involves a matter of the public interest

must be. permitted to survive developments during the

course of the litigation which would have resulted in render-

ing moot a case where only private rights are involved.

In the leading case of United States v. Trans-Missouri .

_ Freight Association, 166 U.S..290 (1897), this Court enunei-

ated that rule in these term: at

„Private parties may settle their controversies at

any time, and rights which a plaintiff may have had

at the time of the commencement of the action may

terminate before judgment is obtained, or while the

case is on appeal, and in any such case the Court

being informed of the facts will proceed no further

in the action. Here, however, there has been no ex-

tinguishment of the. rights (whatever they are) of

the public the enforcement of which the Government

eae.

—

has endeavored to procure by the judgment of a

court ‘under the provisions of the act of Congress

„above cited. The defendants cannot foreclose these

rights nor prevent the assertion thereof by the Gov-

ernment as a substantial trustee.for the public under

the Act of Congress, by any such action as has been

taken in this ease.

‘. See also: Southern Pacific Terminal Company v.

I. C. C., 219 U.S. 498 (1911). a

In Walling v. James l'. Reuter, Inc., 321 US. 671 (1944),

this Court dealt with the contention that an appeal in a

suit to restrain alleged violations of the Fair Labor Stand-

ards Act had become moot because the corporate defendant

had been dissolved. This Court rejected the mootness con-

- tention, stating that ‘In the present postufe of the case

we think it plain that the moving papers fail to establish

that the case ix moot or has abated merely because of the

dissolution of the corporate defendant.”’ (321 U.S. 671 at

673.) This Court cited the Trans-Missouri ‘and Southern

Pacific decision, supra, and -after referring to numerous

decisions in which litigation has been held to survive the

dissolution of a corporate defendant, this Court said:

Aud these principles may be ap jlied in fuller’

* [Fneasure in furtherance af the public interest, which

‘here the petitioner represents, than if only private

interests were involved. See Virginian R. Co. v.

System Federation, 300 US. 515, 552, 57 S. Ct. 592,

601, 81 L. Ed. 789, and cases cited.“ : f

See also: Labor Board v. Pennsylvania Greyhound

ine. 308 U.S. 261. 271 (1938). Fishqold v. Sullivan

Dry Dock & Re pairs Corp.. 328 U.S. 725 (1946).

We submit. therefore, that the decision of the Court be-

low, in declaring the instant. litigation moot, ignoted the

indisputable fact that the-suit involves matters of public, |

_ 8 Suppose that instead of bringing a civil suit, CAL Chapter had elected to

file criminaL charges under Section 2, Tenth of the Act, and a U. S. Attorney had

jnstituted criminal proceedings. Under the authority ‘of the Trans. Missouri, de-

cision it can hardly be doubted that auch proceedings would not have been

ruled moot on the facts of this case. No different result can obtain here, for,

as shown above, the. same public rights are involved hexe. ih

a @

and not private, interest which must be resolved irrespective

of what has happened to the union plaintiff. In that re-

spect, if in no other, the decision below conflicts with the

decisions of this Court and must be reversed. :

But, important as it is, this general principle is by fo

means the sole consideration which justifies review by this

‘Court of the decision below. There is an even more direct

and specific respect in which the decision below cannot be

squared with the rulings of this Court and of other federal

Ever since the time when Congress first established, in

the Railway Labor Act and in the National Labor Relations

Act, the employer’s obligation to bargain colleetively—an

obligation enforceable through administrative and/or ju-

dicial proceedings tis question has presented itself: Sup-

pose that after an employer has refused to bargain, a ma-

jority of the employees renounce the Union, will this loss

of majority support by the Union render it unnecessary or

improper to issue an order compelling collective bargaining, ©

or render proceedings to obtain such an order moot? There

is no question but that this Court has answered that ques-

tion in the negative, particularly where—as in the instant

case—the loss of majority can be attributed to the em-

ployer’s unlawful conduct.;

One of the early cases in which this problem arose was

Feras d N. G. N. Co. v. Brotherhood of Railway and Steam-

ship Clerks; supra. There this Court enforced a distriet

court order compelling the carrier to bargain with the duly

designated union despite the fact that while the proceedings

were pending the carrier had succeeded in coerring a major-

ity of the employees to withdraw from that union and to

select another union as their representative.

The most definitive statement of the views of this Court

on that question appear in Medo Photo Supply Co. v. N. L.

N. B., 321 U.S. 678 (1944), where the employer sought to

avoid the sanctions imposed by the Board against his re-

fusal to bargain on the ground: (1) that the complaining,

union no longer had the support of a majority of the em-

—

*ployees involved, and (2) that unfair labor practices were

condoned by the employees. themselves. This Court re-

jected those contentions in these terms: ö

Petitioner war not relieved from its obligations

because the employees asked that they be disre-

garded? The statute was enacted in the public in-

terext for the protection of the employees’ right to

collective bargaining and it may not be ignored by

the employer, even though the employees consent,

„„ * or the employees suggest the conduct found

to be an unfair labor practice“ “ ' at least where

the ＋ is in a position to secure any advantage

from 4 practices., . * i

_ « “Petitionér cannot, as justification for its refusal

to bargain with the union, set up the defection of

union members whieh it had induced by unfair labor

practices, even though the result was that the union

no longer had the support of a majority. It ‘cannot

thus, by its own action, disestablish the union as the

bargaining representative of the employees, pre-

viously designated as such of their own free will.

„„ * Petitioner's refusal to bargain under those

circumstances was but an aggrevation of its unfair

labor practice in destroying the majority's support

of the union, and was a violation of £8 (1) and (5)

of the Act.“ (Citations omitted.) 321, U.S. at 687

In X. J. H. B. v. Bradford Dycima Association; 310 US.

318 (1940), this Court was likewise confronted. with the

claim of an employer that no order to bargain should issue

because there. had been a defection of members from the

charging union. , In terms directly applieab here, this

Court said: :

. ** Respondent hax contended before the rd, as

here, that if the T. W. O. ( did actually r@present a

majority of its employees on April 4 (as fhe Board

found). n shift in membership had given he Federa-

: tion a majority when the company 0 pril 9 recog-

„ nizedit as exclusive bargaining representative. How-

ever, the Board found that ‘the record is clear that,

had it not héen for the unfair labor: practices of the

respondent in organizing and fostering the Federa-

tion and in E intimidating and coercing

——

—

——

‘employees to join the ‘Federation and leave the

I. W. 0. C., the respondent’s employees would have

_7 remained members of the T. W. O. C.“ In view of the

substantial support in the evidence for the Boards

findings that the company intimidated and coerced -

its employees and dominated the Federation, the

Board properly concluded that ‘The unfair labor

practices of the respondent cannot operate to change

the bargaining representative previously selected by

the untrammelled will of the majority (Footnote

omitted.) 310 U.S. at 339-340. -.*

See also: National. Licorice. Co. v. V. L. R. B.,

supra. Franks Bros. Co v. V. L. R. B., 321 U.S. 702

(1944). International Assn. of Machinists v. NL.

B. 311 US. 72 (1940). N. L.. R. B. v. Meria fer N

tile Mills, Inc., 339 U.S. 563. (1950). ie

The Courts of Appeals and the National Latin Relations

Board have uniformly followed the principle that an orger

remedying unfair labor practices proscribed. by the Act

may. not be denied because of the claim that the charging

union no longer represents the employees in question. See,

3 1 7 ,

e. g.: g |

Semi-Steel Casting Co. v. X. I. H. . 160 F. (2d) 388.

(CA8, 1947). NLRB. v. Sirift. & Co. 162 F (2d)

375 (CAB, 1947). X. L. R. ñ. v. Norfolk Shipbuilding

., 172 F (20) 813 (CA4, 1949). V. L. R. B. v. Tower

Hosiery Mills. 180 F (2d) 701 (CA4, 1950). West

. Texas Utilities Co. v. XI. R. B.. 184 F. (2d) 233. (CX

DC, 1950). V. L. R. B. v. Lambert et al., 211 F (2d) 91.

5, 1954). V. L. R. B. v. Philamon Laboratories. =

Ine F (2d) —, 4% LRRM 2624. (C42. 1962).

Kohler Co., 128 NLRB 1062. Automotive Supply Co..

Inc., 119 NLRB 1074. . .

Surprisingly, the Court below has itself in the past recog-

nized and ‘adhered to this principle. In N. L. R. B. v.

Idaho Egg Producers, Ino., 229 F (2d) 821 (CA9 1956),

the Court stated:

‘‘Moreover an employer may not set up as a justi-

fication for its refusal to bargain with a union ‘the

defection of union members which if had itself in-

duced by unfair nee ey: ‘even though the

consequence is that the union 10 longer has the sup-

port of a majority. In such circumstances the em-

Lee yt ) ployer will be required to bargain notwithstanding

„„ |. » Abe union does not presently have agnajorityN. J.

E. B. v. Parma Water Lifte, Co., 9 Cir, 211 F (2d)

258.“ (229 F (2d) 821, at 823. — f

Tue decision of the Court below cam be reconciled with

the ruliugs of this Court and the other authorities cited

above. That decision permits AH carrier to escape judicial

consideration of the legality of a course of conduct aimed

at destroying CAL Chapter on the ground that Continental

succeeded in accomplishing the destruction before the Court

had an opportunity to rule upon the charges. It. is a con-

clusion that flies in the face of- the authorities reviewed

above, and that violates every sense of justice and equity.

It is trae that in most cases where the question has arisen -

iu the past, the defection from the union on which the em-

ployer sought to rely to escape an order compelling bargain-

ing took the form of a loss of majority—tlie members re-

nouneing their adherence to the charging univn, or joining

another union. Rarely have the répofted cases on this que -

tion involved a situation in which the charging union went

out of existence. Ibviously, however, if ‘anything, such a

case, a fortiori, requires the same result as in the cases re-

viewed above, And in the two reported cases where such a

factual situation ix revealed. that is precisely the result that

was reached. In Tennessee Valley Broadcasting Company, ,

83 N.L.R.B. 895, the charging union was disbanded, before

the Board could rule on the charge of an unlawful refusal .

; to bargain. The Board, in issuing an order. to, bargain,

said: 5 * ars :

» « Vioor is the fact that the Union has ceased to exist

any-impediment to the iestance of an order requiring

the Respondent to bargain with the Union on request.

Under the circumstances of this case,.the disintegra-

tion of the Union myst be attributed to the Respond-

ent’s own unfair labor practices, expecially to its

8 persistent refusal to recognize the Union’s existence +

7 or to bargain with it. It would riot, effectuate the

—

Court said:

9 8 * 18

policies of the Act to permit the respondent to take

advantage of its own illegal aets.“ ““ 1

it See N. I. k. BY v, Blaaton Co., 121 F (2d) 564 (C. A. 8); eee

also Franke Bros. Co. v. N. I. K. B., 321 US. 702; X. L- F. B. v. P.

Lorillard Co.; 314 U.S. 512; N. L. k. B. v. Bradford Dyeing Assn.,

410 U8, 318.7" (83 N. L. R.B. 895 at 899.)

. L. R. B. v. Blanton Co,, 121 F (2d) 564 (CA 8, 1941),

likewise involved a claim that the charging union was no

longer in existence. After considering the _guestion of

whether the claimed Ngnexistence was founded in fact, the

„But, even morè chan all this, the record seems to

us clearly to justify) the finding, that the dazed con-

dition of the anton had been occasioned by the per-

sistenteundermining efforts of the employer, as we

shall discuss later{ Any change in its status from

such a cause was not one to which the Board was re-

quired. to give recognition in favor of respondent.

„» We hold that the Board could properly find

— Ahat the union was such an existent labor organiza-

tt ie

tion as to entitle it’ to

: le charges under the Act.“

(121 F (2d) 564 at 565

(Citations omitted.)

In the instant ease, the plleged_ dissolution of the CAL

chapter may not only be attributed to Continental’s refusa

to bargain. with it and Contimental’s insistence on dealing,

with ALP A, but also, and even more immediately, to the

contracts with the individual flight engineers which Con-

tinental obtained at the termination of the strike. .Such -

conduct, as we, have seen abyve, is itself violative of the:

Railway Labor Act. To hold that by that process Conti-

nental suceeeded in making this suit moot is unconscionable

and in conflict with all of the precedents discussed above.

or right on the question’ of whether a legally effective dis:

solution of CAL Chapter was accomplished. Some brief

comment on the Court’s findings on that question is in order,

however, because those findings themselves emphasize by

For the reasons already discussed, the decision of the

Court below must fall, irrespective of whether it is wrong

—

how far the Court below missed the central issue in the case,

and ignored the applicable precedents of this Court..

The conclusion of the Court below that the dissolution

was validly accomplished rests itself only on the minutes

of a meeting as to which the Court below said pointedly ~

‘disputed questions of fact concerning that meeting are

presented which cannot be determined on the record before

us“ (Appendix A, infra, p. 24.) {Emphasis supplied. |

The Court seeks to set at rest these disputed ques-

tions of fact by finding that any initial invalidity was cured

by ‘‘unanimous ratification’”’ of dissolution by acceptance of

certain options in accordance’ with the settlement agree-

ment, despite the fact that the Court earlier found“ whether. “

it was actually signed by all of them is in dispute,”’ - (Ap:

pendix A, infra, p. 25.) Most startling is the citation of

Harker v. McKissock, N.J. Sup. Ct., 81 A (2d) 480, in sup-

port of the principle of ratification. That case, indeed,

stands squarely opposed to the principle here enuneiated,

_As is apparent from the more comprehensive factual state

ment in the opinion of the Jower court in that case, ratifica-_

tiom was accomplished, formally at a meeting announced

and held for the stated purpose, ‘to discuss and by appro-

priate action to reaffirm the disafhliation.““ 62 A (2d) 405,

27 LRRM 2040. That court relied, properly, on the princi-

ple that an assembly may ratify any action which it has the

power to authorize in advance, in which case the ratifica-

tion relates back to the date of-tlie action ratified. In direct

contrast stand the facts of the case at bar, in which the only

possible source of ratificafion is not the assembly. at. all—

but rather, the individual flight engineers with whom the

ee w dealt individually in direct. violation of fhe letter

and spirit of the Railway Labor Act. 0

Thus, in every respect, the Court below missed the mark

completely. The Railway Labor. Act requires collective

bargaining, prohibits direct dealing. with individual em-

ployees, and insists that employees be free from employer

interference in their selection of bargaining representa-

tives. A suit in a federal court seeking to enjoin violations

‘a *

of the Act involving a refusal to bargain, individual bar-

gaining and coercion. by an employer in the employees’ se-

lection of a union cannot be deemed moot when the em-

ployer sueceeds—through further violations—in destroying

the union completely. Such a result makes meaningless the

' precedents of this Court reviewed above; it involves a ques-

tion of singular importance in the administration of the

a and it cannot be permitted to stand.

CONCLUSION

For all of the reasons stated above, petitioner respect-

fully submits that a writ of certiora ri should issue to review

the decision of the Court below in this cause.

Respectfully submitted,

I. J. GRoMFINE,

HERMAN STERNSTEIN,— -

Wii B. Peer, |

1001 Connecticut Avenue, N.W.,

- Washington 6, D. C.

a Cuarves K. Hacker,

5 1621 West 9th Street,

Los Angeles, California.“

' Attoyneys for Petitioner.

Of Counsel:

* ZimrinGc, GROMFINE AND STERNSTEIN,.

1001 Connecticut Avenue, N. W.

Washington 6, D. C.

NMaRCEH 27, 19622.

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APPENDIX A

—

Anited States Court of Appeals

No. 17,071—et. 23, 1961

| Fucat ENGINEERS INTERNATIONAL Associatios, AFL-CIO,

CAL Cuaprter, AN UnsixcorporaTep AssociaTIoNn, APPEL-

LANT,

vs.

ContinentaL Ain Lix ES, Ixc., 4 Nevapa CORPORATION ; AND

THe Am Lixe Pivots Association, INTERNATIONAL,

AFL-CIO, Ax UNtxcorporaTep ASSOCIATION, APPELLEES. .

Appeal from the United States District Court for the

Southern District of California, Central Division N

Before: IAE x. JenTBeng and Merrie, Circuit Judges.

Hamuey, Circuit Judge: In this, action Flight Engineers

International Association, AFL-CIO, CAL Chapter, (CAL

Chapter) sought a declaratory judgment and injunctive re-

lief against Continental Air Lines, Inc., (Continental) and

The Air Line Pilots Association, International, AFL-CIO,

(AlL PA). The action arose under the Railway Labor Act,

45 U.S. C. A. § 151leet seq., and the-district court-had juris-

diction under 28 U.S. C. A. 1331, 1337.

Plaintiff sought a judgment declaring that a contract

entered into between Continental and ALPA on May 29.

1959, is void and unenforceable to. the extent that it pur-

ports to apply to rates of pay, rules or working coliditions

of persons performing the duties of flight engineers, how-

ever described. It sought a preliminary and permanent in-

junction enjoining defendants from giving effect to the

1 The letters CAL.“ in the name of plaintiff are used to indicate Con-

tinental Air Lines.’’ . ;

— —

N .

„

May 29. 1959 contract, or any renewal modification or eͤ-

tension thereof, or any similar agreement, so as to affect ,

the rates of pay, rules, working conditions, job assignments,

seniority or other conditions of employment of persons per-

forming the flight engineering function employed or to be

employed by Continental.“ N

The suit was filed on June 1, 1960. On the following

day plaintiff moved for a preliminary injunction in aceord-

ance with the prayer of its complaint. A district court hear-

ing was held thereon on June 14, 1960, at which time aff-

davits and briefs were received and oral argument was, had,

no evidence being offered. An order, supported by findings

of fact and conclusion; of law, was entered on July 11, 1960,

denying the motion for a preliminary injunction.- Plaintiff

appeals. We have jurisdiction under 28 U.S.C.A. § 1292

(a)(1). 5

On June 21, 1961, while the appeal was pending in this

court and prior to oral argument therein, Continental moyed

for dismissal of the appeal for mootness. A similar motion

was filed on the same day by ALPA. The motions were

opposed by appellant and we heard oral argument thereon

at the same time that.the ‘appeal was argued on the merits.

Several grounds are advanced by, Continental and ALPA

why the appeal and the case should be dismissed as moot.

2 The injunction sought would also (1) ‘réstrain any change in the manner

of assigning persons to 1 duties of flight engineers as such assign

ments were made prior to May'29, 1960, except changes made as result of

collective bargaining between Continental and CAL Chapter; (2) restrain in-

terterence with any of the employees of inenta! in the designation of a ¢ol-

lective bargaining agent; (3) restrain det from dealing with each other.

as representatives of flight engineers however described; (4) restrain Conti- -

nental from refusing to recognize CAL Chapter as the exclusive bargaining

representative of persons performing duties of flight engineers; (5) restrain

deféndants from putting inte effect any change im fates of pay, rules or work

ing conditions of employees performing duties of flight engineers unless and

until Continéntal should give the written notice and observe other conditions

contained in § 6 of the Railway Labor Act, 45 U. fl. C. A. § 156; (6) require Con-

tinental to restore to their jobs without loss of seniority or other rights all

_ flight engineers employed by Continental on May 28, 1960; and (7) require

Continental to recognize, and deal with CAL Chapter as the exclusive repre-

sentative of all persons employed by the company who were performing the

function of flight engineer; however described.

Among these are the following: a ) CAL Chapter, the sole

" plaintift ‘amtappellaut, is 1% longer in existence; (2) the

dispute ‘involved in the. Ia N uff -- led; und (3)

CAL Chapter represents no presen’ employees of -Conti-

nental and any former employees whom it purports to rep-

resent have accepted termination pay and are now estopped

to claim a right of employment.

Pertinent to these grounds for dismissal the affidavit-

of record establish facts which we now summarize. At

the time the suit was commenced on June 1, 19), CAL

Chapter, the oe. plaintiff and appelunt, was an. unineor-

porated association functioning a~ a labor organization.

As an affiliated loeal chapter of Flight Engineers Inter-

national Association, AFL-CIO) (international), it then

represented flight engineers employed by Continental. At

that time, however, there was no collective bargaining

agreement in effect between AL Chapter and Continental.

The agreement between them had expired on May 1, 1960,

when the parties were unable to agree upon orgss-proposals

for changes therein as proposed in tHlieir respective reopen-

ing notices served in accordance with 45 US.CLA. 5 156.

On June 30, 1960, while this ease wax pending in the dis-

triet court, CAL Chapter called and commenced a strike

against Continental. Twenty-two of the fight engineess

employed by Continental, constituting what, i conceded to

be the complete membership of CAL. Chapter, participated

in the strike. All twenty-two of the «trikers were replaced

‘by Continental, their employment with Continental being E

thereby terminated. - In view of these circumstances Con-

tinental on August-27, 1960, votified CAL Chapter that it

no longer recognized that union us the bargaining agent

for any of Continental's employees. i

While the strike was in progress several of the striking

flight erigineers entered into negotiations with representa.

tives of ALPA regarding ways and means of ending the

strike and merging the flight. engineers inta ALPA, whieh

union would then represent all Continental flight deck crew

members. as

A tentative agreement was formulated after which a

meeting of CAL Chapter was held on October 7, 1960. After

accepting the resignation of G. B. Iverson as president of

the. organization, the meeting adjourned to a later hour

the same day, such . meeting to be held at a dif-

ferent piace. At the reconvened meeting a motion was

made that CAL Chapter be dissolved in accordance with

article I, section V, of its constitution and by-laws, ard

that all strike activities be ended and the flight engineers

be merged with ALPA. According to the minutes of the

meeting, the. mot ion carried by a vote of fifteen for and

one abstaining. N

Article I, section V, of the constitution of CAL Chapter

provided that a two-thirds majority of the active members

was required fur dissolution. There being twenty-two such

members, fifteen votés were required to dissolve. One of

these fifteen votes, however, was that of M. L. Kenyon which

was voted by a proxy given to F. L. San Juan. |

CAL Chapter contends that this proxy was illegally voted

for the reason that Kenyon had not given San Juan his

„ ‘proxy for the purpose of voting for dissolution of the chap-

ter. CAL Chapter. also contends that the vote to dissolve

was invalid for the additional reason that notice was not

given of the meeting at which such vote was had. Conti-

nental and ALPA have submitted counter affidavits as to

each of these matters, but disputed questions of fact con-

cerning that meeting are presented which cannot be de-

termined on the record before us.

By the same vote as on the motion for dissolution a mo-

tion was passed’ directing the acting. president to notify

International, National Mediation Board, ALPA, Conti-

nental, legal firms retained on behalf of CAL Chapter both

past and present, and other interested parties, of the dis-

solution of CAL Chapter and the other aetion described -

above. Under this motion all parties so notified were to

be ‘‘relieved and/or directed to terminate all efforts or

—actions relative ta CAL Chapter.“ A second reconvened

meeting was held on the night of October 7, 1960, at which

a motion was carried directing the officers of CAL Chapter

to act as trustees, as Set' forth in the constitution, „for the

disposal of assets, payment of bills, ete.“ This motion was

carried unanimously, fourteen members being present in

person and one by proxy. :

In accordance with the dction taken at the first recon-

vened meeting of October 7, 1960, notice was given on that

day to the attorneys of CAL Chapter that all differences

between it, Continental, and ALPA had been completely

resolved and that the strike against Continental had been,

‘terminated. Thexe’attorneys were also instructed to enter

into stipulations with counsel for Continental and ALPA

to dismiss or otherwise dispose of aH pending litigation,

which would include the instant case. These attorneys,

however; took no action to dismiss Steh litigation.

A strike: settlement agreement based on the tentative

agreement previously reached was prepared and executed

by ALPA and some of the twenty-two striking flight engi-

neers. Whether it was actually signed by all of them is in

dispute, This agreement was then presented to and ex-

ecuted by Continental on October 10, 1960. Pursuant to.

this agreement, and between October 7 and 10, 1960, seven

former flight engineers elected option (e) in section 1 of

this agreement under which they elected not to return to

work and were paid severance pay in the amount of $10,000

each. These payments were made and, accepted. During

the same period the remaining fifteen former flight engi-

neers elected option (b) in <ection 1 of this agreenient under

which they were re-employed by, Continental as pilots.? The

3 While several of the striking flight engineers now deny that they signed

the supplementa! agreement or authorized anyone to sign for them, no one

denies that he ‘signed a (b) or (e) option. None of those who signed a (e)

option atid pursuant thereto received severance pay in the sum of $10,000 has

indicated any desire to revoke his selection of that option or has made any offer

of. restitution. In the affidavit of former flight engineer Glenn B. Iverson,

however, it is stated: I do not consider it [the signed option (e)] binding

upon me or dispositive of my rights against Continental. By signing option

(e) I did not intend to waive my rights to reinstatement io my“ former position

with Continental under terms and conditions of employment negotiated by the

CAL chapter. . f . rd

latter returped to work about October 11, 1960, and have

continued to\work for the company since that time.

The ‘‘selection of option’’ form signed by all twenty-two

contains the statement: »The undersigned being... a

. signator to the Supplemental Agreement between Conti-

nental Air Linés, Inc., and ALPA dated October 10, 1960.

.. That supplemental agreement expressly recites that

CAL Chapter has been dissélved and that they have termi-

nated the strike and have taken steps to terminate all out-

standing litigation between (‘AL Chapter and Continental.

ALPA and Continental = bsequently entered into collee-

tive bargaining negotiations which resulted in a new col-

lective bargaining agreement between them dated February

28, 1961. This agreement, which will remain in effect until

August 31, 1962, covers all of Continental's flight deck

crew members. The ALPA-Continental agreement of May

29, 1959, has expired and is no longer in effect.

In the meantime, on October 10, 1960, the Master Execu-

tive Committee of International announced the esfablish-

ment of a trusteeship over CAL Chapter and notified all

CAL Chapter members: of this action. In this notice it

was stated that the attempt to dissolve CAL Chapter, termi-

nate the litigation against Continental, and to end the strike

was in violation of the constitution and by-laws of CAL

Chapter and International. International later notified all

‘CAL Chapter members of a hearing in New York City on

November 16, 1960, to be held on the ‘juestion of the estab-

lishment of the trusteeship.

Prior to November 16, 1960, the constitution ang by-laws

of International contained. no provision relating to the

establishment of a trusteeship over a subordinate body

thereof. On that date, however, the Master Executive

Board of International amended the constitution of Inter-

national by adding a new section 16 to article V thereof,

providing in detail — establishment of trusteeships

under stated circumsta

The hearing referred to above was held as sdiciaied,

and on January 4, 1961, the hearing committee issued its

: 27

report approving the trusteeship and recommending that

it be continued. The hearing committee also recommended

that the trustees be instracted th continue to prosecute all

pending litigation on behalf of CAL Chapter. Pursuant

to the procedures set out in the newly-added constitutional

provision respecting trusteéships the recommendations of |

the hearing committee were approved by the Mastes-#xecu-

tive Board on March 21, 1961.“

With these facts before us we turn toa consideration of

the first ground advanced by appeltees why this appeal and

this case must be deemed moot. This ground ig that plain-

tiff and appellant, CAL Chapter, is no longer in existence.

If this is true the appeal and case is necessarily moot, since

there would no longer be a chte or controversy’? within

— the meaning of Article III, Section 2 of the Constitution.

Federal courts have jurisdiction only where a case or con-

troversy is invelved. Muskrat v. United States, 219 US.

„46. 356.

According to the minutes of the — of CAL Chapter

held on October 7, 1960, that chapter wax dissolved at

that time by the requisite number of votes of the members.

The minutes also indicate that 4 fuvtion was passed by the

same vole directing that International be advised of the

dissolution. It is undisputed that uch notice was given on

that date.

The facts just recited establish that CAL Chapter was

- dissolved on that day unless other tacts are properlgbe fore

us which establish that such dissolution was invalid or

ineffective. Facts which axsertedly demonstrate the in-

validity or ineffectiveness of that dissolution are presented

by CAL Chapter acting through trustees appointed under

a trusteeship established by International.

But appellees Continental and ALPA contend that the

purported trusteeship was not validly established, and since

International is: not a separate party and has no interest

4 The trustees of CAL Chapter filed reports with the Commissioner of the

Bureau of Labor-Management Reports of the United States Department of

Labor, concerning the establishment of the trusteeship on October 10, 1960.

On May 9, 1961, the trustees filed a semiannual report with the commissioner.

A ͤ —uö—ͤ—3—⁴n— —

in' this case except as trustee, no question as to the invalidity

of the dissolution is properly before us. Appellees point

to 29 U.S. C. A. § 462 which provides that trusteeships shall

be established and: administered by-a‘ labor organization

over a subordinate body ‘‘only in aecordance with the con-

_ stitution and by-laws of the organization which has assumed

trusteeship. ...."" Appellees call attention to the fact,

conceded by CAL Chapter, that ou October 7, 1960, when

-CAL chapter voted to dissolve, and on October 10, 1960,

when International purported to establish a trusteeship, the

‘constitution and by-lays of International contained no pro-

vision relating to trusteeships.

„Cal Chapter meets this argument by contending that,

International had the inherent“' right to establish a trus-

teeship because the attempted dissolution threatened the

‘‘natural right of self-preservation”’ of International. CAL

Chapter also argues that, authorized by the amendment

to. International’s constitution made on November 16, 1960,

whereby trusteeships were provided for, the Master Execp-

tive Board at a later date ratified and continued the trus-

teeship initially based on inherent’ right.

Whatever “‘inherent’’ power an international union for-

merly may: have had to impose: a trusteeship where the

international constitution or by-laws made no provision

therefor, it. has had no such power since the enactment of

the Labor-Management Act of 1959. Public Law 86-257;

73 Stat. 531. Section 302 thereof, 20 U.S.C.A. § 462 ex-

pressly provides that-stch trusteeships shall be established

and maintained „only in accordance with the constitution

and by-laws of Se. which has assumed trus-

. ö

If confirmation is needed of the specific limitation thus

intended to be placed upon internationals, it is sufficient to

refer to Senate Report No. 187 to accompany S. 1555, which

Weeame the Labor-Management Act of 1959. The commit-

tee therein stated that it concurred in the select committee's

recommendation that there should be a ‘limitation on the

right of internationals to place local unions in trusteeship.“

* *

290 —

2 US: Coda. yer and Ad, News, 8th Cong, Ist Sess.,

1959, p. 23335 = - * 0

If it be assumed, however, ies an -Jaternational has such

an “inherent” right notwithstanding section 462, that right

could at most be exerted for the purpose of preventing the

subordinate’ body from violating some obligation it had

accepted by virtue of its relationship With the international.

But on the record before ‘us it is, established that in dis-

‘ solving on October 7, 1960, CAL Chapter. violated no-suelr

obligation. f

The only prov ision of International’ s constitution and

by-laws concerning the dissolution of chapters is section 4

of article V whieh provides in part: No chapter shall be

disbanded or withdrawn by,its own motion as long as the

-majority of the members in good ‘standing favor its con-

tinuance.. . . It is undisputed that at the meeting of

CAL Chapter held on October 7, 1960, at least fourteen of

a total chapter membership of twenty-two voted for disso-

_ lution, thus fully meeting the requirement of section 4 of

article V of International’s constitution.

It may be that CAL Chapter also obligated itself to

Inte ational dissolve only in the manner provided in the

_ chapter’s-constitution and by-laws. In that event consid-

eration should be given to CAL Chapter’s contention that

one less than the two-thirds vote required by the chaptep’

constitution and by-laws yotad for dissolution, and that

notice of the meeting at which dissolution was voted was

not given in the manner required by the chapter's constitu-

tion and byjaws. 4 {ip ‘ a :

But if there was any initial invalidity in this regard the

same has been cured by the unanimous ratification of the

dissolution evidenced by the acceptance, not later than Oc-

5 The Senate committee also said, in analyzing the trusteeship provisions

of the act:

‘*Seetion 202 [later 202 of the bill sets up two standards for testing

the legality of a trusteeship.

First, the trusteeship must ‘conform to the constitution and bylaws

of the labor organization. (2 U.S. Code Cong. and Ad News, 86th

Cong., lst Sess., 1959, p. 2334) ;

tober 10, 1960, ‘of one or the other of the options offered

under the supplemental agreement of October 10, 1960. As

before noted, these. options contained the recjtal that the

person signing his name is ‘‘a signator to the supplemental

agreement. . That supplemental agreement expressly

recites that CAL Chapter has been dissolved. The described

circumstances, considered together, constitute a unanimous

ratification of the dissolution proceeding which in our view

overcomes auy possible question as to the validity of those

proceedings. See Marker v. McKissock, N. J. Sup. * 81

A. 2d 480, 485.

On Nov ember 16, 1960, the coustitation of International

was amended to permit trusteeships. But this newly-added

provision was applicable only to chapters in existence on

that date. As before’noted, CAL Chapter had been dis-

solved not later than October 10, 1960.

We conclude that International, acting through its pur-

ported trusteeship of CAL Chapter, or ‘otherwise, has no

standing to question the validity of-the dissolution of CAL

Chapter. In view of that dissolution, the sole plaintiff and

appellant no longer exists.

For the reasons stated, this appeal and case is now moot.

We think it is also moot for the two additional reasons

urged hy appellees as set out.earlier in this opinion.

The. appeal is dismissed! and the case is remahded with

_ . directions to dismiss the same.

(Endorsed) Opinion Filed Oet. 23, 1961.

Fun H. Scum, Clerk.

- Hnited States. Con Court ut Appeals

FOR: THE NINTH emcurr 0

No. 17071—-Judement

* Fuicut Ewerveers INTERNATIONAL ASSOCIATION, AFL- C10,

CAI. Crapter, ETC., APPELLANT,

Vs. .

Continentat Am Lives, Ixc., RT AL., APPELLEES,

—

Appeal from the United States, District Court for the

Southern District of California, Central Division.

This cause canie on to be heard on the Transeript of the

Record from tlie United States District Court for the South-

ern District of California, Central Division, and on mo-

tions of appellees to dismiss seis here herein and was

duly submitted. ,

On consideration whereof, it is now here ordered and

' . adjudged by this Court, that the motions to dismiss in this

Cause be, and hereby are granted. and that the appeal in

this cause be and hereby is dismissed and that the cause is

remanded to the said District Court with- directions to dis-

miss the cause, with costs in this court in favor of the ap—

pellees and against the appellant.

It is further ordered and adjudged by this Court that .

the appellees recover against the appellant for their costs

herein expended and have execution therefor. N

Filed and entered October 23, 1961.

ay The United States Court af Appeals -

i. ‘FOR THE NINTH CIRCUIT |

_EXCER PT PROM PROCEEDINGS OF THURSD AY

. DEC EMBER 7 1961

Before: HaMLey, JerTBEnG and 8 Circuit Judges:

Order Denying Petition for „

On consideration thereof, and by e of the Court,

it is ordered that the petition of. appellant, filed. December

4, 1961, and within time allowed therefor by rule of Court,

for a rehearing of above cause be and hereby is denied.

“aA

' APPENDIX B

‘Pertinent provisions of the Railway Labor Act referred

to in the brief are as follows: ec oa a

Section 2, Third:

„Third. Representatives, for the purposes of this Act,

shall be designated by the respective. parties without

interference, influence, or coercion by either party over

the designation of representatives by the other; and

neither party shall in any way interfere with, influence,

or coerce the ether .in its choice of representatives.

Representatives of employees for the purposes of this

Act need not be persons in the employ of the carrier,

and no carrier shall, by interference, influence, or

coercion seek in any manner to prevent the designation

by its employees as their representatives of those who

or which are not employees of the carrier.“

Section 2, Fourth: |

„Fourth. Employees. shall have the right to organize

and bargain collectively through representatives of

their own choosing. The majority of any craft or class

of employees shall have the right to determine who .

shall be the representative of the craft or class for the

+. purposes of this Act. No carrier, its officers or agents,

‘shall deny or in any way question the right of its em-

ployees to join, organize, or assist in organizing the

labor organization of their choice, and it shall be un-

lawful for any carrier to interfere in any way with

the organization of its employees, or to use the funds

of the carrier in maintaining or assisting or contribut-

ing to any labor organization, labor representative, or

other agency of collective bargaining, or in perform-

ing any work therefor, or to influence or coerce em-

ployees in an effort to induce them to join or remain

or nd to join or remain members of any labor or-

ganization or to deduct from the wages of employees

‘any dues, fees, assessments, or other 2

payable to labor organizations, or to collect or to assist

in the collection of any such dues, fees, assessments, or

other contributions: Provided, That nothing in this

Act shall be construed to prohibit a carrier from per-

33 5

mitting an employee, individually, or local representa-.

tives of employees from conferring with management

during working hours without loss of time, or to pro-

hibit a carrier from furnishing free transportation to

its employees while engaged in the business of a labor

organization.“ N

Section 2; Seventh:

„Seventh. No carrier, its officers, or agents shall

change the rates of pay, rules, or working conditions

of its employees, as a class as embodied in agreements

except in the manner prescribed in such agreements or

in section 6 of this Act.’’

«<

Section 2, Ninth:

‘‘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 request of either party

to the dispute,-to mvestigate 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 involyed in the dispute, and certify the

same to the carrier. Upon receipt of such certifica-

tion the carrier shall treat with the representative so

certified as the representative of the craft or class for

the purposes of this Act. In such an investigation,

the Mediation Board shall be authorizgd to take. a

secret ballot.of the employees involved, or to utilize

any other appropriate method of ascertaining the

names of their duly designated and authorized repre-

sentatives in such manner as shall insure the choice

of representatives by the employee= without interfer*

ence, influence, or coercion exereised by the carrier.

In the conduct of any election for the purposes herein

indicated the Board shall designate who may partic-

ipate in the election and establish fhe rules to govern -

the election, or max appoint a committee of three

neutral persons who after hearing shall within ten

days designate the employees who may partibipate in

the election. The Board shall have access to and have

—

power to make copies of the books and . cords 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 6:

‘Sec. 6. Carriers and representatives of the employees

shall give at least thirty days’ written notice of an

intended change in agreements affecting rates of pay,

rules, or working conditions, and the time and place

for the beginning of conference between the repre.

sentatives of the parties interested in such, intended

changes shall be agreed upon within ten days after

the receipt of said notice, and said time shall be within

the thirty days provided in the notice. In every case

where such notice of intended change has been given,

or conferences are being held with reference thereto,

or the services of the Mediation Board have been re.

quested by either party, or said Board has proffered

its services, rates of pay, rules, or working conditions

shall not be altered by the carrier until the controversy

has been finally acted upon as required by section 5

of this Act, by the Mediation Board. unless a period of

ten days has elapsed after termination of conferences

without request for or proffer of the services of the

Mediation Board.”’ a

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.