Petition for Writ of Certiorari — Malat v. Commissioner

Supreme Court brief1962

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| _ STATEMENT | a

This is a, -companion case to International Association of

Machinists, et al. v. Central Airlines, Inc., October Term,

1962, ‘No, 61, now pending’in this Court. The six employees | .

involvéd. ‘in that pending case were. discharged for failure.

to attend a disciplinary hearing while under Suspension, at

_ which time they were denied union representation. The in-

stant case arose from a strike which was called to’ protest.

this failure to permit union representation. There is no

factual issue as to the purpose of the strike (PI. Ex. 4-C-U-5;

S. F. 524, S. F. 553*). Respondent conceded in its First

Amended Original Answer (Tr. pp. 30-317) that the stated ’

_ reason for the strike “was the alleged refusal of the defend-

ant, Central Airlines, to permit Union representation at the -

w inquiry or investigation * ** *.” And the trial court acknow!-

edged that the purpose was. to obtain “a hearing and’ repre-

; sentation” (fr. P. 151). The Court of” Appeals — that

ing its ts legal conclusion that the six adn “were entitled

to refuse any interviews: : Without benefit of the presence of an |

advisor if they so chose.” (Appendix A; p. 3a, infra. )

When the strike began, respondenit promptly made a deter-

mination that all of the strikers were terminated as of the .

time they went out on strike (S. F. 346, 354), and. during the -

course, of the strike replacements, were hired.

1S. F. refers to: “Statement of Facts” the stenographic ves of the

~~” trial.

2Tr: refers to the “Transcript,” ‘in compilation of pleadings and —

_ in the trial Cours. se

° 2 post \

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Ree ae. . 5 A

During the strike, “neither the- company nor the union —

sought any relief through the machinery*of the courts, or |

through any grievance procedure of the contract or under .

the provisions of the Railway Labor Act” (Appendix -A,

p. 5a, infra). However, after the strike had been in progress

| . for several days, the company granted the six employees a

hearing on grievances which had been filed protesting their

"< suspensions. The Opinion below summarized the termination

‘of the strike as follows: . | |

“The strike lasted ten days. During that period the: ‘

company representatives met with the union representa-

_ tives, and at the meetings the union took the position .

, _ that since the six suspended employees had been granted

~ a hearing® and representation as provided by Section 22

of the contract, the purpose of the strike had been accom-

plished. The Union. caused a notice to be‘delivered to the

company which stated in part’ as follows: ‘Due to the

fact that the suspended employees were granted Union

representation, the denial of which precipitated the

above méntioned work. stoppage, I have ‘ordered all the

employees to report to work at 8:00 A.M., Thursday,

’ April 17, 1958.’ ; : otc 2

“There was no written agreement in settlement of the ©

strike, and there. wege no oral commitments by the com-

pany regarding the restoration to duty of all or any of

them. The company merely stated that it would take

each individual as he appeared and process his case.

The union chose not to continue the strike until such

time as any terms might be agreed upon, but ordered the

‘ \e men to-report to the company, which they did. As the

‘men appeared, the: company processed .them as appli-

cants for employment in the same or near-identical

3The hearing referred to was the first step of a series of hearings that

culminated in the award of Francis J. Robertson. (Pl. Ex. 1.) This award’

is also ere at Pp. 10-36 of.the Transcript of Record on file in the

“pending Central case. (No. 61.) - ;,

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manner as it ordinarily aia an applicant for

employment who had not. theretofore. been in an em-

Sau a relation with the company. The com-

: idopted the position, which it was careful at all

tintes to maintain, that when the strikers left and set

up the picket line they had ‘quit’ their respective em-

_ployments, and had. themselves severed the employer-

> employee relationship existent immediately prior to bang

time they had gone on strike.

“The company restored some of the strikers to the

same jobs at the same pay, some of them to jobs of a

lower classification at reduced pay, but fifty-three were

not re-employed at all. None of the strikers were ever

served with’ notice of ‘discharge’ either orally or in

writing. It is to be remembered that section 22 of the

union contract provides. that any ‘discharge’ from the

employer-employee relationship - must be by -way of a

service of notification in writing, and that subject

thereto the individual dismissed has the right to apply

for and receive an investigation and hearing.” ( —

: Appendix, A, pp. 6a-7a.) :

* The Court of Appeals Opinion holds the strike unlaietial

because it arose from a “minor dispute,” and that in striking.

_ the ‘union “elected to ‘abandon recourse to the machinery ©

afforded by the Act * * *” (p. 12a, infra). However, the -

Court did not retreat from, nor did it explain, its prior con-

clusion relating to the cause of the strike that:

“* * * we are convinced that in view of the fact that

the individuals were under discipline imposed by’ the

company in view of their suspensions, they were entitled

to vefuse any interviews without benefit of the presence:

of an advisor if they so chose.” (Appendix, p. 3a, infra. P

Nor did the Court. comment directly on the result this denial’.

of union representation would have had on the availability of

has

effective grievance machinery, Nor did the Court attach any

significance to its prior finding: that the company likewise ~

did not seek relief “through any grievance procedure of the -

" éontract or under the provisions of. the Railway Labor Act”

(Appendix A, p. 5a, infra).

But the Court below did find, contrary to the coigention 4

of the respondent, that the fifty-three: employees who. were

held out of service did not terminate their employment by the

act. of striking. It found that the congressional intent in the

Railway Labor Act was 9 :

ioe

‘that although an individual employee engages

in collective action, as in a striké, his status continues

-to ‘be that of an employee, even though the collective

strike activity in which he has engaged may be illegal

within the purport of the Act*** |

“ce & &

° each individual striking member: of the -union

must be considered to have thereafter “we in his

status as an employee. * * 4

‘The Court of Appeals, however, denied the union-and the..

terminated employees the fruits of this conclusion, for two

reasons. - ; 2

It first aia, contrary to the view of the trial court, that

the union and the employees had abandoned available steps

in the grievance procedure and thus were “without standing

in'the courts and the relief prayed for is-foreclosed” ( Appen-

_ * dix A, pp. 12a-18a, infra). In treating the System Board as

an “available” step, the Court of Appeals simply assumed the.

existence of a firmly established system board of adjustment.

We hasten to add, however, that this does not raise any issue

_ of fact. The trial court, for example, acknowledged that “the .

| 8 , .

company refused to recognize the Board’s authority,in the

“matter” ( Tr. 55). And the evidence is entirely undisputed

that the carrier did réfuse to recognize the Board’s authority, —

in fact, it withdrew its two members from the Board and

prevented the Board from functioning.

The undisputed evidence was that:on July 2, 1958, the

union ‘submitted the cases to the Central-IAM System Board

of palatal. 5 which was composed of two company repre-

* sentatives and two union representatives. The cases remained

‘pending, without the company members. ever conceding a

deadlock, until “hearing before the four man Board was ©

rae resumed on June 29, 1959, at which time the company

members made the following statement and withdrew from |

: the proceedings: ; |

“Let the record reflect that in so far as the company’

members of the Board are concerned that if the Chair-

man. persists in attempting to.go forward with cases

' .number 36. through 96, the company members of-the—. -—-

Board have no alternative but to withdraw and have-no

participation therein. ” (S. F. 412-413, Pl. Ex. 4, pp.

24-25.) * ; |

Thus, respondent, as to all grievances involved herein,

either failed to establish, or disestablished, the System Board -

of Adjustment, and. there was no such Board available to ;

adjust and decide the dispute. What the Court of Appeals

- referred.to as an abandonment of further available steps‘in

. the grievance procedure was in fact merely a recognition by

the union that the carrier had refused to make the System

_ Board available; hence, after two years of efforts to process

4A summary of the undisputed evidence relating to the union’s efforts

to obtain system board determination. of these cases is contained in -

anemaen D hereto, p. 29a,. infra. ‘

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the cases under the contract,’ the union » had 1 no place t to go .

except to the courts, :

The second reason. by which, the Court of Appeals riullified

the effect of. its holding that the strikers’ employment had

not been terminated by the act of striking, was its ee,

based on the finding that the strike was illegal,

_ “** * that as applied to the strikers, whose jobs were

filled during the time they were. voluntarily holding

themselves out of service, their rights under the union

contract should be considered to have been abrogated, at

least to the extent of any seniority right to jobs filled

by the new employees, when they resorted to a strike

_ rather than to the grievance procedure of the contract. ag

- (Appendix A, pp. 13a-14a, infra.)

In addition to the foregoing, this case also involves the

- contracting out ‘of bargaining unit work to maintenanee %

' contractors, a practice which was begun during the strike.

The material facts are. not in dispute (S. F. 275-283). The

contract (Pl. Ex. 4-A) provided-that-the-work-wis Within

“the scope of this Agreement.” [Section 9(b) of-contract].

For purposes of this petition, this issue is essentially the

same as the issue involved in the withheld from ser'vice cases,

for the Court of Appeals found: .

“*-* © this was a- subject of grievance which. was

filed along with those relating. to the fifty-three strikers

and which was abandoned after once begun and carried

through the majority of the ‘steps’ in grievance pro-

cedure prior to the filing of the suit. What we have

already said relative to the binding effect of the election _

by the union and employees to proceed under grievance

procedure would apply to this matter as well.” (Appen-

dix A, p. 26a, infra.)

. The. Court of Appeals found that ‘ “the company y detayed proceedings

in every way and at xi oO: Baas (Appendix A, p. 8a, infra.)

oe Central case. (No.

aor 10 | a

This follows, because this grievance never reached deadlock

either, for it was within the group of system board cases. as

‘to which respondent withdrew its board members (See aa

pendix D hereto, p. 29a).

The present action was brought in the state district oount:

ag cof Tarrant County on February. 29, 1960.

| Petitioner raised the federal question in. the instant case.

| initially in the cial court (Tr. pp. 2-17, S. F. 553). Re-

spondent’ s defense set up: the illegality of the strike ‘under

_ the Railway Labor Act (Tr. pp. 26-35, S. F. 11). The appeal

- to the Court of: Appeals below, the motion for rehearing and

the application for writ of error, all raised the federal ‘ques-

tidh herein (Brief to Court of Appeais, Points 2, 3, 4, 5, 6, 7,

and 12 in particular; Motion for Rehearing, points 8,10, 11, -

12, 18, 19, 20,21, 22,-28, and 28 in ‘particular; Application —

for Writ of Error, com 2, 3, 4, and 5 in pertiewlar) The

9”

eral statute, for it noted. that

“The law of, the case is provided.in the Railway Labor

Act—Carriers by Air, U.S.C.A. Title 45 ‘Railroads,’

Ch. 8, Secs. 151-188. ¢ (Appendix A, p. 9a, infra.)

_REASONS FOR GRANTING THE WRIT -

1. The doctrine of the unfair labor practice strike is firmly

- established and recognized under the National Labor Rela-

tions Act, and this Court/in Mastro Plastics Corp, v.

N.L.R.B., 350 U. S. 270, ‘100 L- Ed. 309, 76 S. Ct. . $48,

addressed itself to the related question : a

“Does the. collective bargaining’ euntrect waive . the.

employees’ right to strike against the unfair labor prac-

- tices committed by their employers?”’

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The Court responded ‘that there was nothing in the contract

in issue, notwithstanding the existence of a no-strike clause,"

which waived the employees’ right to strike solely against the

- unfair labor practices of their employers. 350 U.S. 270, 284:

| See also N.L.R. B. v. a Iron Works, : 220 F. 2d 126.

The instant case poses essentially the same question’ under

‘the Railway Labor Act. Borrowing Taft-Hartley phrase- |

ology, the strike involved in this case was an unfair labor ~

practice strike—for its purpose, as found by ora

was to obtain union representation at a discip] ary hearing

for six employees whom: the company had suspended. The

strike: protested the employer’s refusal to recognize and treat

with the certified representative of its employees, i in violation

of Section. 2, First, Second, Third, Fourth, and the general

purpose clause of Section 2 of the Railway Labor Act.

The wie and the National. Labor Relations Board have

generally maintained a parallel interpretation as to the duty

to bargain under both the Railway Labor Act and the Labor

Management Relations Act of 1947, as. amended. Elgin,

_ Joliet and Eastern. Railway v.: Burley, 825 U. S. 711, 89 L.

Ed. 1886, 65 S. Ct. 1282; : Railroad Teélegraphers v. Chicagd

& N.W.R. Co., 362 U: S. 330, 4 L. Ed. 2d 774, 80S. Ct. 761;

Bethlehem Steel Co., 89 N.L.R.B. 341, 25 LRRM 1564;

Town & Country Mfg. Co,, Inc.;, 136 N.L.R.B. No. 111,49 _

LRRM. 1918; Railway Clerks b. Atlantic Coast Line R. Co.,

®The Central- IAM contract did not contain a anetatiee clause, to which °

fact petitioner attaches no special significance except in so far as it

indicates the intent of the parties to limit their grievance procedure to

' contractual disputes. The instant dispute which . recipitated the strike,

however, was over the carrier’s refusal to follow the grievance procedure,

and that specific dispute. was never the subject of a formal Srievasice by

either the union or the carrier. °

———

201 F. 2d 36, Cert. den. 355 U. S. 992, 73 S. Ct. 1131. In

Steele v. Louisville & N.R. Co., 323 U.S. 192, 200, 89 L. Ed. ©

173, 65 S. Ct. 226, this Court referred to the duty to bargain ;

_ under the two statutes as. “like provisions.”

It has s long been: recognized that bargaining under both |. *

collective bargaining contracts. It also means treating ex-

clusively with the union: representative as to bargainable

to permit union representation. herein would patently have

‘been a violation of Sections 8(a)(1) and 8(a) (5) of the ae

Labor Management ' Relations Act, had that statute been

_ statutes: “means more. than. merely periodically negotiating |

‘matters and not dealing individually or settling grievances -

‘directly with employees except in the limited manner pro-

vided by express statutory provision. Respondent’s @efusal

applicable, and in fact it’ was a violation of the comparable.

provisions, supra, of the Railway Labor Act. Bethlehem Steel

Co., supra; Gagnon Plating and Mfg. Co., 103 NLRB 2638,

269; E. I: Dupont De Nemours & Co., 115 NLRB 84, 96.

Cf. footnote 35 in Elgin, Joliet and Eastern Ry. v. Burley, -

supra, $25 U.S. 711, 737. ;

By granting certiorari herein, the Court will ave, an

opportunity to determine whether Die parallel duties under 3

‘the two statutes require. parallel treatment of the right to

Strike against an employer’s violation of its statutory duty

to bargain and deal with the representative of its employees.

The traditional concept of “major” and “minor” disputes

-has adequately served to describe most Railway Labor Act

disputes and strikes spawned by such disputes;’ however, i

"Elgin, Joliet and Sectenn Ry. v. Serta, rn Brotherhood of R.R. f.

v.. Chicago River & I. R. Co., 353 U. S. 30, 1 L. Ed. 2d 622, 77 S. Ct. 635.

we.

Utes Rat ie

- that canis ha’ not been sufficiently ‘flexible to encompass

all types of disputes and strikes which have occurred under

- the Act. For-example, the concept pre-supposes the existence

of a grievance procedure available to either party and.capable

of making a final and binding determination | as to the con-

struction, ‘interpretation, and application of existing con-

_ tracts. But the instant case illustrates that in the airline

industry, where there i is no National Board of Adjustment, |

_ recourse must generally be I had to separate system boards of |

adjustment, which may. or may ‘not be available, depending

on the cooperation of both parties. Furthermore, the strike :

in- the instant case was actually caused by the employer’s

- refusal to comply with the contractual grievance procedure.

Ultimately ‘the employer refused to join with the union to

compose a system board which could have. settled the case

now before this ‘court, and this employer also refused to

comply avith the same ‘System Board Award to which it. has: . .

pointed as proof that system board relief was available if the

employees were aggrieved: by the denial. ot union ore.

—" |

: "Although the precise question posed ae’ is one of first

_ impression in this Court, _several United States Courts of

Appeals and this Gourt have passed on questions related in

principle, but the-Opinion of the Court ‘below runs counter

to the principle. underlying such cases. The Courts. have

‘refused to permit injunctions, under the mandate of the

Norris-LaGuardia Act, as to certain strikes. where the causal

= dispute either could not-be classified simply: as “thajor” or

*The Robertson: award involved in h the pending Central case No. 61.

“minor”, ‘or where the classification of “minor dispute” did -

not; ipso facto, provide légal basis for declaring the strike

enjoinable or unlawful. Pe

Manion v. Kansas City Terminal Railway, 353 U.S. 927,

‘1b. Ed. 2d 722, 77S. Cr 706,. indicated that a carrier would .

_ not be entitled to an injunction against a strike during the

” term of a: ott the subject matter of what would :

otherwise be a mifhor dispute is pending before the appropri- .

~- ate Board of ryreone or at least, efforts have been made

to bring such dispute before such Board. In remanding .

Manion “without prejudice to the power of ‘the Court of

Appeals to reinstate its judgment. if the dispute is submitted

to the Adjustment Board by either party within a reasonable ~

_ time,””® was the Court not placing a significant caveat on the

_ Chicago River (supra, footnate 7) doctrine? It would appear

an that if -the complaining party has ignored the adjustment

pe . board machinery Chicago River does not apply and the ”

aa proscription of Norris-LaGuardia remains effective, which

was the interpretation which the Seventh ei gave the

Manion.case; |

we © © that a court shoold at’ 1 perinit the use-of its’

injunctive powers in cases involving minor disputes .

:° where such disputes could have been submitted to the

' Adjustment Board.” Hilbert v. Penn. R.R. Co., 290 F.

2d 811, 885-886. id

~ Confusion: in terms is perhaps inevitable in ‘certain cases

where attempt has been miade ‘to squeeze the dispute into .

either a “major” or “minor” slot. ‘Illustrative are two sig-

| nificant decisions of the Ninth and Second a, Where |

*Emphasis added.

@ .

the courts. in essence recognized that a strike under the Rail-- |

~ way Labor Act may, be protected in the same manner as

under the Taft-Hartley Act. Of course, the phrase “unfair

labor practice” strike” has not been’ used, but the judicial

result appears, to be the same. | \

The Ninth Circuit, in Butte, Anaconda. & P. Ry. Co. v.

= Locomotive Firemen, 268 F. ad 54, denied use of an injunc-

tion against a‘strike where it found that the carrier

«<#* * does not seek an injunction to compel utiliza-

tion of Railway. Labor Act procedures, Rather it wants

‘to enjoin employees from resorting to selfhelp after

appellant itself ow Anaconda) abandoned those

procedures.”

_ This case is an example of the privileged use of a strike,

. provoked by a carrier, even when other avenues of relief

- might have been open to the union."

And more recently, a’ Second Circuit majority held in .

Rutland Railway v. Locomotive Engineers,. . F.2d 4,

‘50 LRRM 2585 (Petition for Certiorari filed Aug. 28, 1962,

No. 380, Oct. 1962 Term), after characterizing the dispute

as “minor” that if in fact the carrier “thas failed to take the

steps required of it by the Railway Labor Act, it is not en-

titled to injunctive relief against the strike of its employees.”

And in Northwest Airlines v. Transport Workers, 190 F.

Supp. 495 (42 CCH Lab. Cases, 116,764), a District Court:

. came close to using Taft-Hartley concepts when it refused an

injunction where an airline’s navigators were. honoring’ the

°The Court also stated, citing the Manion case, that because of: em-

ployer’s failure to submit "the dispute to the Adjustment Board, even if

the dispute had been “minor,” Section 8 of Norris- LaGuardia Act would

have oneren an injunction.

_ ee

- picket: line of another union. The Court found this to be “‘a &

. concerted refusal to work, actively encouraged and directed

by the officers of the local union and the international, but

not ac“minpr” labor’ dispute. Cf. Boeing Airplane Co. v.

, Hoenn, 188 F. 2d 356, cert. den, 342 U.S. 821.

Tha.policy expressed in the foregoing cases follows the

direction laid down by this Court in Brotherhood of R.R.

Trainmen v. Toledo P.. & W. R.R., 321 U. S. 50, 88 L. Ed.

_ 53%, 64 S. Ct. 418, in which Section 8 of the Norris-La

Guardia Act was held: to deny injunctive relief against a

strike where -a carrier had omitted the step of arbitration

and thus failed to make “every reasonable effort” to settle

the dispute. Otherwise,, injunction would have been available.

The Court there announced that -

“The policy .of ‘the Railway Labor Act. was to en-—

courage use of the non-judicial process of negotiation,

. mediation and arbitration for the adjustment of labor. .

disputes.” 321 U.S: 50, 63."

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‘The, same policy, applied to the instant case} would require

reversal. of the Court below, on grounds that by denying

union representation at the grievance hearing, the carrier |

violated the statute. The carrier’s hands were not clean. A

strike to enforce the statutory duty should not have been

classified dé a “minor Capa’ or if so classified, the carrier’s

failure to use grievance procedures and to make such pro- . |

. Gedures available % the union’ ought to have prevented a

finding that the strike was iJegal. And if the strike was not

‘illegal, the employer’s constructive discharge of the strikers,

which occurred: at the — of the strike and before:

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replacements were hired, should have been found unlawful -

and in violation of the contract and the Act. , i

The Court below erred in holding that the employees, by

their act of striking, lost their rights under the union contract

“at least to the extent of any seniority right to jobs filled by

the new*tmployees .* * *.” Query, if the contract remains in _

effect, as it did here, may the employer ignore the contractual

: procedures for terminating seniority for “just cause” only? pee

This question affects not only employees under the Railway }

Labor Act, but substantially “all employees under collective

bargaining. The decision below (guns counter to established

contract law, that where a party fails to rescind a contract in

response to.a material breach—such as a strike in violation

of the contract—he is bound to follow the contract as to his: -

_ +sremedies. This principle has been applied under the Railway. °

_- Labor Act, though of necessity generally by system boards}

Of ‘adjustment and Presidential Erhergency’ Boards. Boeing.

‘Airplane Co. v. panne, 188 F. 2d 356 affirming 91 F..

‘ Supp. 596, cert. den. 342 'U. S. 821, 96 L. Ed. 629; Trans

World Airlines, Inc., 24 LA 953 Presidential Emergency -

Board, No. 62. Such cases indicate that even as to illegal

' strikes, the contractual procedure for discharge fhust be fol-

lowed, otherwise the discharged strikers are entitled to rein-

_ Statement. Such a result is consistent with the procedural due

process which a contractual grievance procedure attempts to

Sigh achieve. In view of the strong public. interest in labor disputes |

affecting transportation, especially those in the — indus-

_ try, this issue is a proper 0 one for this Court.

g .

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“This case raises the further question, should the withheld

from service employees have been treated the same as unfair 7 .

labor practice strikers and returned to their jobs: notwith-

standing that replacements had been hired? The rule is clear

under the Taft-Hartley Act. N. L‘R.B. v. U. S. Cold Storage,

, 203 F. 2d 924; Modern Motors, Inc., 96 NLRB 964. Peti-

tioner-contends the rule should be the same under the Railway

Labor Act, and the strikers should have been reinstated arid

made whole as to their losses from the date the strike ended,

at which time they had.made an unconditional offer to return

to work. we ny

. The second question vied by this petition is whether ¢ a

carrier violates the. Railway Labor Act when it withdraws

its "members from a system board-of adjustment, thereby ..

preventing a deadlock and the appointment of a neutral. In

view of the similarity between system board hearings in the

airline industry and arbitration proceedings generally, the

principles enunciated in the Steelworkers trilogy" ought to

be applicable. If not, judicial elucidation as to the differences

will be of immeasurable benefit to the parties who must deal

_ with the arbitrable process in the airline industry through ©

system boards. The Chicago River case, supra, breathed life —

into and gave definition to the grievance settlement pypgess

Sunder the Railway Labor Act, but- the subject ere

defined. was the statutory National Railway Adjustment |

Board, over which a single party had, no -control. There is.

now need for similar attention to:fhe system board process

11f!nited Steelworkers v. American Mfg. Co., 363 U.S. 564, 4 L. Ed. 2d

1402, 80 S. Ct. 1343; United Steelworkers v. Warrier & G. Nav. Co., 363

i: S. 574, 4 L. Ed. 1409, 80 S. Ct. 1347; United Steelworkers v. Enter-

prise Corp., 363 U. S. 593, 4. L. Ed. 2d 14 424, 80 5. Ct. 1968.

| .

19 a

as it affects the airline industry, for if.a carrier can frus-

trate system board determination by withdrawing from the

board, then certainly the Chicago Riter doctrine, which

allows injuriction against minor dispute. strikes because of

availability of meaningful adjustment board remedies, will’

| have been placed in jeopardy. No citation of authority is

| required to demonstrate the frequency with which United

States District Courts have issued injunctions against airline

strikes ‘in recent years, which injunctions have been based on

. the Chicago» River doctrine. Certainly it is reasonable to

expect that the system board remedy be both available and

effective if unions are to be required to give up their right to

strike, for. the language of the Railway Labor Aet itself

exacts no such drastic penalty directly. If the decision below _

is not reviewed and set aside, it will stand as an open invita- -

tion to any airline employer desiring to sidestep the em-

ployees’ ‘representative and make a mockery of the system.

board procedures. ‘Such a result can only destroy the basic

scheme of the Railway Labor Act: insofar as it affects the

airline industry.

Section 204 of the Act makes it the atity of the carrier and

the representative to establish the board of adjustment. It :

seems basic, therefore, that when. the . company . members

walked out of the hearing room on June 29, 1959, and

announced their withdrawal from all further participation .

and thereby prevented a’ deadlock and appointment of a

neutral, respondent was disestablishing the Board for pur-

_ poses ¢ of the instant grievances.

20 ;

: 3. The final reason ‘for granting the writ is perhaps al- ;

ready implicit in what has previously been stated. Fifty-three

“ae employees have been denied their jobs and. others have suf- -

fered economic hardship. The union’s collective bargaining

position has been. obviously impaired. The relief which this.

Court has power to grant in the companion: ‘Central case, now ~

pending, cannot be complete as to the basic dispute unless

this case is also reviewed. Both cases arise from common .

events and if meaningful ‘judicial review is to be achieved BS

both should be passed on by this Court. |

CONCLUSION .

Basel on the foregoing reasons, writ of certiorari should |

be granted, for the State Court has erred substantially in the

interpretation of a federal statute. Upon review, the decision

of the Court below should be reversed and remanded for

ascertainment of damages by the trial court.”

Respectfully submitted,

. CHARLES J. Morris,

Bae 1601 National Bankers Life

| < Bidg.,

Dallas 1, Texas.

PLATO E. PAPPs,

1300 Connecticut Avenue, ©

Washington 6, D. C.,; ‘

| FS » Attorneys for Petitioners..

Of Counsel: , . oe ae

MULLINAX, WELLS, Morris & Mauzy,

1601 National Bankers Life Building,

Dallas 1, Texas. Se cee x

October 6, 1962 3 |

. sPareent: to stipulation of the parties (Tr. 42).

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APPENDIX A

Opinion of the Court of -Civil Appeals for the Second

Supreme: Judicial District of Texas

- No. 16297 —

- From the District Court

of Tarrant County

Plaintiff union and numerous individuals brought suit

against the defendant airline company for. damages accrued —

as the result of their wrongful discharge from an employer- © .

employee relationship, formerly existent between the indi-

. viduals and the company, in breach of union contract exist-

. ing at ‘the date of discharge, for a writ of injunction which -

would restore the individuals to théir former jobs and for. .

general relief, Additional complaint, by. the union jn behalf

of all employees , of the company represented by it, was be-

‘cause of the company’ s practice, begun on and after the date

claimed as that of the individuals’ wrongful discharge, of

_contracting out maintenance work on its aircraft. Such work

had formerly been performed by the company on its own

premises by its own employees.

Trial was before the court without intervention of a jury,

and judgment was rendered against the individuals and the

union and in behalf of. the company. No findings of fact or

conclusions of law were. requested 0 or _—. ‘An appeel was

taken to this court.

Judgment affirmed.

2a. -

The individuals bringing the suit had been among that

category. of employees of the company represented by ‘the

union under a contract in effect between the union and the

‘company on date of April 7,_ 1958, On said date.the union.

‘called’a strike, in which all | of said individuals participated,

~ because of certain mistreatment the union believed the com-

pany had afforded six of its employees (not the individuals .

considered in this suit) growing out of said employees’ .re-

‘It would be well to understand the affair of the six em-

ployees in question, so we will attempt to briefly state it.

On April. 4 and 5, 1958, the six employees were served by

"the company with written notice that they were each “sus- -

pended from service” and instructed to present themselves at

8:00 o’clock on the morning. of April 7, 1958, at the. office

of the company’s director | of | maintenance. The company,

| ‘through its said director, intended to question the employees

concerning their reasons for refusing to: work overtime on

the aircraft. “The employees a appeared on the company prem-

ises as requested, though they were ‘not on the payroll of the -

company in view of their “suspensions”. ‘Union representa-

tives, one a cé-employee of the men appearing and one not an_

employee, presented themselves along with. those the company .

had directed to appear. The company insisted that it was

entitled to talk to the men individually and privately.. The

_men and the union representatives ‘insisted that the company

. did not have the right to do so. There was a refusal on their

~ part that any such interview be held. While it was not de-

{ Py

—

* that in view of the fact that the individuals were under

discipline imposed by the company in view. of their suspen-

sions, they were entitled to refuse any interviews without

benefit of the presence: ‘of an advisor if they so chose. They

did so choose, and the company would 1 not: accede, where. |

° , —.

fined as such, we believe that the union was contending that °

what the company desired amounted to a “step” in the griev-

ance procedure of the contract-between the company and the -

_union," while the company was contending that it did not

eee he

amount to ‘such. a “step”: Be that.asit.may, w we are convinced

upon they left the premises. .

Section 22, entitled “Investigation wa Discipline” is : the .

| part of the contract which was in effect between the company —

and the union which the union believed to have been. invoked

by the company, and. which the company did not consider

~ to have application. Material portions thereof read as fol-

lows: “(a): Hearing. 1. An empl@¥ee shall not be disciplined —

or dismissed from the service of the Company without notifi- ’ ~~ a

cation in writing of such action. An employee’ who is disci-

plined or dismissed shall be entitled to an investigation and

hearing thereon, provided that such employee makes written

request for such investigation and hearing within seven (7)

days after receiving such notification. 2. An employee may :

"be held out of service by the Company pending such investiga-

tion and hearing and appeals therefrom * * *. 4, Prio. to”

such investigation and hearing, such employee shall be -noti-

fied in writing by the Company of the precise charge or.

charges against him. He shall be given the necessary time, —

~ not exceeding seven (7) days, in which to secure the presence

_* 1 fe

of witnesses and shall have the right to be represented by the

employee of .the ‘Company of his choice or by his duly ac-

credited representative or representatives. 5. Such investiga-

_. tion and hearing shall be held by a maintenance supervisor of

the Company, designated by the Company for that purpose, —

_ and shall be held within seven (7) days after the receipt of

the employee’s. written request therefor.” Further provisions -

prescribe time schedules within which decisions are to be

rendered, and for appellate steps and decisions and forms .

thereof through the company and thence before the Central

Airlines, Inc. Mechanics’ System Board of Adjustment.

_ Asa matter of information, it is to be noted that each of

the six individual employees, after the events heretofore men- .

tioned, filed their written request for an investigation and

hearing under the provisions of Section 22 (a) 1 of the afore-

said contract. These were honored and processed by the com-_

._pany in accordance with the other provisions of said section.

The union and other employees of the company did riot”

wait until the individual employees filed such written re-

quest for investigation and hearing. Obviously they were

incensed at the attitude of the company and its representa-

tives.on the morning of April 7th. A union meeting was called

for a time later in the day at which the majority present

proceeded erroneously upon the supposition that the company

had breached the provisions of the union contract by refusing

\\to proceed with the interview it had requested of the sus- -

pended individuals in and with the presence of one or more

* yepresentgtives of the union. Although it should have been

clear to anyone with the. slightest Jegal training that the —

company-had not breached the contract, the union and its

membership certainly in the best of faith, reached ‘a conclu-

sion to the contrary. By wire the following notice was pre-

pared and served upon the company, “* * * your failure to _

comply with section 22 which calls for the presence of & union °

representative in a suspension hearing involving @ # © (is)

_ Such a material breach -of the agreement. that we. have no - ae

_ alternative but to exercise “the rights reserved for us in —

ng in concerted ‘action to protest the agreemen from

ah continuing violations the above mentioned employ

well as those engaging in concerted action are ready, willi g

and able to comply with section 7 of the agreement eS ;

does not call for forced overtime employment. Your attempt

to impliedly write into the contract a forced overtime provi- = \_

sion is in, strict violation of section seven ‘of the agreement. oi x

A ws was called and the great majority of the union

~ employees! failed to present themselves for work on the fol- -

lowing day, April 8, 1958. The union put out a picket line at

the company’s plant. It was not honored by the members of

_other unions. The company publicized | ‘the fact that it was —

taking applications to fill the strikers’ jobs : and began hiring ;

new employees as permanent replacements, The company-also—-____—-

negotiated contracts with private contractors for work to be

done away from its premises. ‘ : ,

a Neither the company nor the union sought. any relief

through the machinery of the courts, or through any griev-

ance procedure of the contract or under the provisions of the

Railway Labor Act. As previously indicated, a request for ~

2 Se x

\ hea was filed by or in behalf of the six ne em-

, _ Ployees, and the company was careful to proceed thereupon

in \strict compliance. with the provisions of the union. con-

tract, At all times the company treated the contract : as one

‘continuing in effect. , |

The strike lasted ten one: During that period the company

' representatives met with the union representatives, and at ©

- the meetings ‘the union took the position ‘that since the six

Pa ssi employees had been granted a hearing and repre-

* sentation as provided by Section 22 of the contract, the pur-:

otice to be delivered to the company which stated in part

. of the strike had been accomplished. The union caused .

follows: “Due to the fact that the suspended employees _

- were granted Union representation, the denial of which pre-

cipitated the above mentioned work stoppage, I have ordered

all aemplayenh to repent: to Werk. af 8:90 A.M. Thocwiay,

‘April. 17, 1958.’ m

* There was no written agreement in , nitalaiei of the

strike, and there were no oral commitments by the company

_ regarding the restoration to duty of all or any of them. The

‘company merely stated that it would take each individual as

eel

he appeared and process his case. The union chose not to con-

tinue the strike until such time as any terms might be agreed |

upon, but ordered the men to report to the company, which .

they did. As the men appeared, the company processed. ‘them

as applicants for ’mployment i in the same or near-identical

_ Manner as it ordinarily processed an applicant for emiploy-

ment who had not t theretofore — in an _employer-employee

3 \

Rane

relation with the company. The company adopted the posi-

. tion, which it was careful at all times to maintain, that when

-. the strikers left and setup the picket line they had “quit”

their respective employments, and had therhselves severed

the employer-employee relationship existent immediately

_ prior to the time they had gone on strike. . ee

The company: restored some of the strikers to the same

- jobs at the same pay, some.of them to, jobs of a lowér classifi-

cation at reduced. pay, but fifty-three were not re-employed

at all. None of the strikers were ever served with notice of |

“discharge” either orally or in writing. It is to he remem-

_- bered that section 22 of the union contract provides that any

“discharge” from the employer-employee relationship ‘must -

be by way of a service of notification in writing, and that.

subject ‘thereto the individual dismissed has the right to

apply for and receive ‘an investigation and hearing. oy.

Not being restored to service at’ any work whatever, the

fifty-three aforementioned individuals did file, within ‘seven

(7) days, grievance forms in which substantially the.follow-

ing uniform statement was made: “T have been unjustly held

out of service since I reported’ for it at 8 A.M. on Thurs-

day, April 17, 1958. In accordance with Section 22 of the

current_I. A. of M.—Central Airlines, Inc. Agreement, I~ |

request that I be reinstated without loss of seniority rights

and that I be paid for all loss of pay involved.” Albeit con-

- testing-at every. step, the right of any of the fifty-three to be

heard and considered as a person entitled to the procedure

afforded by section 22 of the contract, the company honored .

the “steps” for grievance procedure set forth thereunder, gn

3°

so.far as any “step” required action by anyone within the

company’s power to furnish or control. Admittedly the com-

pany delayed proceedings i in every way and at every oppor-

= tunity, being careful to barely “skate inside” the boundaries

beyond which it would be safe for it to go without Jeopardy |

to its avowed contentions. _ ‘

; ‘Despite attendant delays the grievances were ‘ental

step-by-step up until they reached the point where the union -

(and the individuals) petitioned. the National Mediation

Board for a neutral] referee to make a decision in the case.

Such was a “step” in grievance orddedure preliminary to any

‘finality of decision under the provisions of the coritract and

the Railway. Labor Act. At no point did the company so act /

or refuse to act as to block orderly processing of the cases,

and indeed to do so would not’ be within its power, albeit,

as already mentioned, it delayed matters. when it could and

it at all times contested the right of jurisdiction of those pro-_

vided and/or required to make determinations—under the .

theory that the employer-employee relationship which had —

_ formerly existed between it and the strikers was voluntarily

severed by thé employees: themselves as the’ result of ‘their.

unilateral unlawful strike action. After having petitioned —

for a neutral referee the: union ( and the individuals) with-

drew application therefor (and: for further action under ;

grievance: procedure): The suit in district court was filed.

At all times prior to filing the suit the contention of the

“union and the individuals was that the employer-employee _

. Yelationship between the company and the individuals per-

sisted up until the time any further grievance ileal was

authorized and ‘permissible as. applied to the matter upon

which grievance was filed, and that the individuals were

‘merely “out of service”, and wrongfully held in such state

_ of suspension by the company. In filing the suit, on Febru-

- ary 29, 1960, they apparently accepted the contention of the

company that the employer-employee relationship -was in ‘fact--

severed, at least as of the date of April 17, 1958, when they.

appeared and presented themselves as available to perform

the duties of their: employment. Thus they attempted, by .

agreement to be implied, to yield in their first contentions

upon being “held out of service” and to narrow the: issue to

a question of whether the severance of the employer-employee

relationship was the fault of the company in that it wrong-

fully “discharged”. them, or whether: it. was their own fault

a in that they “quit” their employment relation. ‘We entertain

considerable doubt, under the circumstances, of the propriety

of either party’s attempt to retroactively fix the men’s status |

as one in which the —" relationship did not

exist. |

Despite the fact that the union and the strikers 1 ehienaibly

offered to agree and concede that the employer-employee re-

¥ lationship was terminated in April of 1958, we, believe it

ould be wise to examine the state of the law, : ;

The law. of the case is provided in the Railway Labor 3

Act—Carriers by Air, U.S. C. A. Title 45 “alee, ch. 8,

: Secs. 151-188.

10a,

~ Under. the Act it is previded in both section 152 and sec-

tion 159. that nojiging contained i in the Act shall be construed

to make the quitting of his. labor or service by an individual

employee an illegal act. To us the meaning of this encom-

_ passes the congressional intent that although an individual |

employee _ngages in- collective action, as in a strike, ‘his

status -ontinues to be that of an employee, even though the

collective strike activity in which’ he ‘has ‘engaged may be —

illegal within the purport of the Act. Furthermore, it means

- that no such individual employee may’ be treated and con-

— as having quit, his employment, or as having severed

. ‘is relation to his employer as an employee, but conversely

must be treated and considered as having ceased from his

* labor or having held himself “out of service” on a temporary

basis. A like distinction was recognized by the Supreme Court

of Texas in the case of International Union of Operating

Engineers v. Cox, 1949, 148.Tex. 42, 219 S. W. 2d 787. In

view thereof it would appear that it would only be in in-

stances of discharge, acknowledged as.such, that a period :

- _ could be considered tohave begun for which damages could be

sought under the theory that-the discharge was wrongful.

_By striking it may be that an individual employee may “to

abrogate certain of his rights under the contract to which

he is privy as a member of a union which negotiated it, but,

in view of the Act, his right to have his status as an employee _

would. in every case persist and would not be totally altered

! solely on account of the fact that he had engaged in a strike, °

regardless of its legality or illegality: If he be <a)

because he was or had o a striker he would be entitled to o

oe |

elect as to whether he preferred to file a grievance subject to

appeal to the ultimate appellate body constituted within the

contemplation of the Railway Labor Act in seeking: reinstate-

ment, plus damages. perhaps,—or preferred to honor and ac-

cept the discharge and sue for immediate relief in the form

of damages.

_ -Under the circumstances of this case we are of the opin-

ion that because of the fact that the collective strike action

was contrary to the intent and’ purpose of the Railway Labor

Act, and therefore unlawful, yet, for purposes of the Act,

each individual striking member of the’ union must be con- _

sidered to have thereafter continued in his status as an. _

employee, albeit one who has voluntarily held himself “out

of service’, for none of them quit or were discharged from ,

the “employee” status.

Consideration may well be given to a ‘determination of

whether the case, before ag has grown out of a labor dispute

_ % -properly characterized a8 a “minor dispute”, enjoinable by

it the-ceufts, or as a “major dispute”, not subject to injunc-

‘tion. Referring to the case of Elgin, J. & E. R. Co. v. Burley,

1945, 325 U.S. 711, at page 723, 65 S. Ct. 1282, at page

1290, 89 L. Ed. 1886, and considering the nature of the

dispute over which the union called the strike, ‘it is readily

ssi kS eh that the strike arose over a “mino“ dispute’”’,

~o., most one in which the union and its membership con-..

| oe for interpretation. or’ enforcement of contragtual

rights previously agreed upon, rather than to create any new

contractual right.

12a

Cailor the present state of the lai eppiicebls. to the trans-

port. industries-a strike called over a “minor dispute” be- —

tween management and labor may be enjoined to prevent a

_ tie-up of transportation facilities. The primary purpose of

. the Railway Labor Act is to avoid interruption of commerce

_ by providing for. orderly, peaceful settlement of such dis-

putes, which form of settlement. is by the Act made the duty

of both labor and management,’in Sec.°152 and 184 under

procedure prescribed and made enforceable under provisions

of these sections and Secs. 158, 155. and 185.

It is ébviens from the circumstances of this éase that the -

- union, in calling the strike, elected to abandon recourse to

the machinery afforded by the Act and to penalize the com--

‘pany by economic coercion. The company elected to refrain .

from seeking to combat the tunion’s strike activity through i in- |

_ junctive procedure, but instead sought to accommodate itself

to the condition confronting it by allaying its problems in

hiring new employees and contracting out certain of the work

it had formerly handled.

Conceding arguendo, that the dies. who were not re-

| turned to work were and continued to be its employees, and

that its relation to them was as employer to employee, regu-

_. lated by the provisions of the union contract, the- company

asserts as binding upon them their presentation’ of their’

* grievances through procedure afforded under the contract

itself and under the Railway Labor Act. Ergo, says the com- |

pany, since the last decision under the. grievance procedure

was against. the contentions of the union and the ‘strikers |

who were not returned to service, and since they abandoned ;

13a

further available “steps” in the grievance procedure, such

* last decision had become final and they are without standing

_in the courts and the relief prayed for is foreclosed.

In connection with such contention of the company we are

of the opinion that it is correct and should be sustained and >

“that the cause of action of the union and the individuals

‘might-have been properly dismissed. Sarran v. Missouri Pa-

cific Railroad Company, 1959 (Tex. Civ. App., An-

tonio), 380 S. W. 2d 925, error refused; Union Patific R.

Co. v. Price, 1959, 360 U. S. 601, 79. S. Ct. 1351, 1355, a

L; Ed. 2d 1460. :

Except for the fact that we believe the proper order in

the trial court might have been dismissal of the cause had the _

company moved for a dismissal, the judgment should be one

affirming the denial of relief for the same reasons. ;

Assuming there would be no question of propriety for this

court to consider that it possessed the right to act in all re-

spects rather than merely upon the right to damages, it would

seem that if we.could, and were to sustain the union and the

_ strikers who were not reinstated in service—would oust from

their jobs those new employees who went to work for the

company while the illegal strike was in progress. We be

lieve that as applied to the strikers, whose jobs were filled . |

-during the time they were voluntarily holding themselves out

_ of service, their rights under the union contract should be —

considered to have been abrogated, at least to the extent of e

any seniority right to. jobs - filled by the new employees, when

_ they resorted to a strike rather than to the grievance proce-

en culminating i in the strike.

ida?

dure of the contract. Indeed, it appears that the ee hired -

employees came under the jurisdiction of the union contract

upon their employment by the company, or at least shortly

thereafter, and their own rights- would be those specified by

the same contract. It is to be noticed that the company never »

at any time treated the contract as having been: wholly abro-

_. gated, and even during the progress of the strike proceeded

~ to honor its processes for-the handling of the grievances of

the six suspended employees as to whom ” —— arose

Since the Act requires the sitteiia to be individually con-

sidered, we may hypothesize the situation as follows: No. 1:

_ employee refuses to perform the service for which he is em-

~ ployed by the company and holds himself “out of service”

pending satisfaction demanded of the company. While the

situation persists No. 2- applicant, presents himself for em-

ployment and certifies. himself ready to perform the job in

"question, and the company enters into the employer-employee

relationship with him and he begins to perform service on

the job from which No. 1 absented himself. Should No. 1

present himself to ‘the company and certify his readiness to

resume the duties of his employment on such job, withdraw-

ing his previous demands, is the company in duty: bound to

restore him to the job despite the fact that to do so would re-

quire it to hold ‘No. : “out of service”?

We think not. If. the company were so required, No. 1

' would be afforded the opportunity to continue on the job

until he was assured that the services of No. 2 were no-longer —

available to.the company, whereupon he could again hold him-

15a

self absent as “out of service” until the company met the.

same demands, once withdrawn but now reasserted. By this_.

means would be placed within the power of No. 1. all the

weapons of. economic coercion, while at the same time the

’ company would be deprived of all rights to maintain itself

as applied to:the job which should be performed if its com-

Merce .is to continue within the contemplation of the Railway

Labor ‘Act. Of necessity it would: appear that principles of -

‘equity would have application, the exigencies of which would

warrant the company in continuing thé period as to which

- No. 1 was “out of service” so long as the-job is filled by No. 2 ;

in the satisfactory rendition of service. This would have spe-

cial application. to an instance where there was no specific

provision of the contract under which employment was con-

~ ducted which would require the discharge or holding “‘out of

service” of the employee who would-be in the position of

No. 2 in the situation hypothesized. There’is no such specific

provision in the contract considered in the instant case.

~Of course nothing hereinabove stated should ‘be construed

to have any application or effect in any instance of a general

strike where, pursuant to a new contract or agreement made

in settlement. thereof, agreements are entered into which

would fix employment rights and seniority as between those -

who had engaged i in the strike and those who were newly em-

ployed during the period of the strike.

As applied i that part of the contention which relates to

‘the work being contracted out by the company to mainte-

nance contractors on premises away frorn those ad the com-

. 16a ie ne

- pany, we take oceasion to note that the contract: upon which .

the contention is asserted has no application to work , per-.

formed on premises other than that of the company, save and

except work performed elsewhere by the company’s own em- :

ployees. Furthermore, this.was a subject of grievance which

was filed along with those relating to the fifty-three strikers

and which was abandoned after once. begun and: carried _.

through the majority of the “steps” in grievance procedure

- prior to the filing of the suit. What we have already said,

* relative. to the binding effect of the election by the union and -

employees to proceed ynder grievance ems would apply

- * to this matter as well.

We have =n ‘mentioned that the company at all

times refused to recognize and consent that there would be

‘any jurisdiction of the cases filed under the grievance pro-

cedure in the various boards and bodies, prescribed by the

contract and by the Act to ‘consider grievances. There isa :.:

point of error grounded in the contention that the trial court -

erred in failing and refusing to find that the cated vio-

lated the contract by such refusal.

This matter is ‘hot material. The Company’ 8 ot could be. .

no more than a challenge of, jurisdiction. Just as in instances

- of litigation-in the courts jurisdiction may be attacked as to

the persons or as to the subject matter and the challenge so .

- presented sustained or denied. Even when it is ultimately de-

termined that the challenge is groundless, he who made the

| challenge has lost nothing to which he was entitled, although © |

conceivably he might have failed to gain something to which

17a:

he would ‘have been entitled had. he claimed it. He is cer-

tainly not estopped to make his other defenses. Jurisdiction,

if-it exists, is not impaired by a contention that it does not.

exist, and one who successfully resists a contention that juris-

diction does not exist gains nqthing — a ruling which

~ sustains the jurisdiction.

It will beobvious to counsel for the litigants on this appeal —

that in-some instances the. ‘points of error have been sus-

tained, and in other. instances ‘they have been overruled. In

no instance, however, ‘would the effect of sustaining a point

be to establish any error which would require a reversal .

“the judgment of the trial court. |

Judgment is affirmed. a

| Frank A.. Massey

| Chief Justice.

Feb. 23,1962 | 7 ae ce eneieh

‘ CONCURRING OPINION’ ©

~L-eoneur in the affirmance of the judgment.

Thomas J. Renfro,

_ Associate é ustice.

Feb, 23, 1962 »

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APPENDIX B

Order of Supreme Court of Texas —

— Petition for Writ of Error

No. A-9035 Se MA AE duly 11,1 1962

International Association of _ | :

Machinists et al.'- Krom Tarrant ‘Sabie, Second

vs. : District. :

Central Airlinés,’ Inc.

_ Application of petitioners for writ of error to the Court of

Civil Appeals for the Second Supreme Judicial District hav- —

ing been duly considered by the Court, and the Court having .

‘ determined that same presents no error requiring reversal | -

* of the judgment of the Court of Civil Appeals, it is ordered

that the application be, and hereby is, refused. It.is furtfier

» .ordered that the applicants, International Association . ~ aa

Machinists et al. (named as appellants i in the judgment of the

Court of Civil Appeals) , and their sureties, Otto B. Mulli-

nax and a} W. —, pay all costs incurred on. this appli-

cation.

I, GEO. H. TEMPLIN, Clerk of the Supreme Court of

Texas, do hereby certify thatthe above and foregoing is a

true and correct copy-of ‘the order*entered by the Supreme ;

5 Court of Texas on — for writ of error as numbered

eae |

a Dealt yee ae

and styled above, as s the same appears in the minutes of said

WITNESS may hand and the. seal of the Sapreme a |

a Texas, at the City of Austin, on this, ‘the =~ of |

August, 1962. 7

GEO. H. TEMPLIN, CLERK

By /s/ Jewell Seeliger

* Mrs. Jewell Seeliger, Deputy

he , a 2la

\ . APPENDIX C

The relevant provisions of the Railway Labor Act (44

. Stat. L. 577, as\amended; 45.U.S.C. §§151-163, 181-188) are —

_ .as follows:

et \. — 4

“Section 1. When used in this Act and for the pur-

poses of this Act— \. 1

ie .& @

.. “Sixth. The term ‘representative’ means any person

or persons, labor union, ‘organization, or corporation

" designated either by a carrier or group of carriers or by

_‘its or their employees, to act for it or them.

° a -4 CA ‘

_. “Sec, 2. The purposes of the Act are: (1) To avoid .

any interruption to commerce or to the opération of

any carrier engaged therein; (2) to forbid any limita:

tion upon freedom of association among employees ‘or

- any denial, as a condition of employment or otherwise,

_ of the right of — to join a labor organization;

(3): to provide for the complete independence of carriers,

arid 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 con-

cerning 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 application of agreements covering

“First, It shall be the duty of all carriers, their offi-

effort to maké and maintain agreements 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

Qa - |.

interruption to’ commerce or to the operation of any

carrier growing out of any dispute between the carrier

and the employees thereof. -

“Second. All-disptites between a carrier or carriers

and its or their. employees shall be.considered, and, if

_ possible, decided, with all expedition, in conference be- —

_ tween. representatives designated and authorized so to

confer, respectively, by. the carrier or carriers and by .

_ the employees thereof interested in the dispute.

“Third. Representatives, for the purposes of this

__ Act, shall be designated by the respective’ parties with-.

‘out 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 other in its choice of representa-

tives. 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 desig» -

nation by its employees as their representatives of

those who or which are not employees of the carrier.

“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 pur-

poses 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 contributing to

any labor organization,"labor representative, or other

agency of collective bargaining, or in performing any

work therefor, or to influence or coerce employees i

an effort to induce them to join or remain or n :

_ join or remain members of any labor organization, or

23a

to deduct from the wages of employees any dues, fees,

assessments, or other contributions payable to labor —

organizations, or to collect or to assist in the collection

| of any such dues, fees, assessments, or other. contribu-

tions: Provided, That nothing in this Act shall be con-

strued to prohibit a carrier-from permitting an em-.. —

- ployeé, individually, or local representatives of employees

-from. conferring with management: during working

hours without loss of time, or to prohibit a carrier from

furnishing free transportation to its employees while

engaged in the business of a labor organization. .

“Sixth. In case of a dispute between a carrier or

carriers and_its or their employees, atising out of

‘grievances or out of the interpretation or application —

of agreements concerning rates of pay, rules, or wOrk--

ing conditions, it shall be the duty of the designated.

representative or representatives of such carrier or _

carriers and of such employees, within ten days after

‘ ‘tHe receipt of notice of a-desire onthe part of either

party to confer in respect to such dispute, to specify

a time and place at which such conference shall be held:

. Provided, (1) That the place so specified shall be

situated upon the line. of the carrier involved" or as

otherwise mutually’ agr upon; and (2) that the

- time so specified shall all designated conferees

_ reasonable opportunity to reach such place of con-

‘ference, but shal! not exceed twenty days from the

receipt of such notice: And provided further, That

nothirig in’ this Act shall be construed to supersede

the provisions of any agreement {as to conferences)

then in effect between the parties.

“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. _ ae ene

>. & *

‘24a

. “See. =.

. “First. There is hereby. oisiiiaeg a Board, ‘to he

known as the ‘National Railroad Adjustment Board’

aa * *

prevent any individual carrier, system, or group of car- .

_riers and any class or classes of its or their employees,

all acting through their representatives, selected in

accordance with the provisions of this Act, from mutu-

ally agreeing to the establishment of system, group, or

regional boards of adjustment for the purpose of adjust-

_ ing ‘and deciding disputes of the character ee in

- this section. In thé evént that either party to such a

. System, group, or regional board of ‘adjustment is dis-

satisfied with such arrangement, it\may upon ninety

days’ notice to the other party elect to. come under the

jurisdiction of the Adjustment Board. ~ *

a * *

“Sec. 6. Carriers and representatives of the em-

ployees 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

representatives of-the parties interested in such in-

tended 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 requested by either party, or said Board has prof-

fered its services, rates of pay, rules, or working con-

ditions 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 the termination

of conferences without request for or proffer of the y

services of the Mediation Board.

25a,

“TITLE I,

“Sec. 201. All of the provisions of. title I of this

Act, except the provisions of section 3 thereof, are ex-

tended to and shall cover every common carrier by air,

engaged ininterstate or foreign commeree, and every-

earrier by air transporting miail for or under contract

with the United States Government, and every air

pilot or other person who performs any work as an em-

ployee. or subordinate official of such carrier or car- |

riers, subject to its or their continuing authority to

_ supervise and direct the manner of rendition of his

_ service. ren oe

“Sec, 202. The duties, requirements, penalties, bene-

fits, and privileges prescribed and established by

the provisions of title I-of this Act, except section 3

thereof, shall apply to said carriers by air‘and their

employees in the same manner and to the same extent

4s though such carriers and their employees were

specifically ‘included within ‘the definition of ‘carrier’

and ‘employee,’ respectively, in section 1 thereof.

* ” * é

“See, 204. The disputes between an employee or group

. of employees and a earrier or carriers by air growing .

out of griévances, or out of the interpretation or appli-

-eation of agreements concerning rates of pay; rules, or .

working conditions, including cases pending and unad-

justed on April 10, 1936 before the National Labor

Relations Board, 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 an appropriate adjustment board, as hereinafter

provided, with a full statement. of the facts and support-

ing data bearing upon. the\disputes,

“It shall be the duty of every carrier, and of ‘its em-

ployees, acting through their representatives, selected in

accordance with the provisions of this title, to establish

. oe °°

26a

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. }

“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 | ig

in this Act shall prevent said carriers by air, or any

class or classes of their employees, both acting through

their representatives selected in accordance with pro-

this title, from mutually agreeing to the estab- .

lishment of a National Board of Adjustment of tempo-

rary duration and of similarily, limited jurisdiction.”

“The _— provisions of. the Labor Management Rela-

tions Act of 1947, as amended (61 Stat. 136, 29 USC. git et:

seq) are as follows: 5

: “See. 7. Employees shall. iis the right. to ‘self-

organization, to form, join, or assist labor organizations, ,

_ to bargain collectively through representatives of their

own choosing, and to engage in other concerted activities

for the purpose of collective bargaining or other mutual

aid or protection, and shall also have the right to re -

- frain from any or all of such activities except,to the ~~

extent that such right may be affected by an agreement

requiring membership in a labor organization as a con-

dition of employment as ) eatnartnes f in section 8(a) (3).

‘ “Sec. 8.

“(a) It shall be an unfair labor practice for an

employer—

- “(1) to interfere with, restrain, or coerce employees

in the exercise of the rights guaranteed | in section 7;

27a nei

“(5) to refuse to bargain collectively with the repre-

sentatives of his employees, subject to the provisions of

section 9(a). air .

“Sec. 9.

‘. “tay Representatives designated or selected for the —

- employees in a unit appropriate for such purposes, shali

be the exclusive representatives of all the employees in

such unit for the purposes of collective-bargaining in

respect to rates of pay, wages, hours of employment, or

other conditions of employment: Provided, That any in-

dividual employee ‘or a group of employees shall have

the right at any time to present grievances to their em-

ployer and to have such grievances adjusted, without the

intervention of the bargaining representative, as long |

as the adjustment is not inconsistent with the terms of

a collective-bargaining ‘contract or agreement then in .

effect: Provided further, That the bargaining repre-

-sentative has been, given opportunity to be present at

such adjustment.” : |

The relevant provision of the Norris-La Guardia Act (47°

Stat. 70, 29 U.S.C. §§ 101-115) are as follows:

“Sec, 2, In the interpretation of this Act and in de- -

termining the jurisdiction and authority of the. courts

of the United States, as such jurisdiction and authority

are herein defined and limited, the public policy ‘of the

United States is hereby declared as follows:

“Whereas under. prevailing economic conditions, de-

veloped with the aid of governmental authority for own-.

ers of property to organize in the corporate and other

forms of ownership association, the individual. unorgan-

ized worker is commonly helpless to exercise actual lib-

erty of contract and to protect his freedom of labor,

‘and thereby to obtain acceptable terms and conditions

of employment, wherefore, though he should be free to

‘

> ~— 28a

decline to associate with his fellows, it is necessary that

he have full freedom of association, self-organization,

and designation of representatives of his own choosing,

to negotiate the terms and conditions of his employment,

and that he. shall be free from the intérference, re-

. straint, or coercion of employers of labor, or their

‘ self-organization or in other concerted activities for the

purpose of collective bargaining or other niutual aid or

protection; therefore, the following definitions of, and

limitations upon, the jurisdietion and authority of the

-courts of the United States are hereby enacted.

- See, 8: No restraining order ot ‘injunetive relief

shall be granted to any complainant who has failed to

comply with any obligation imposed by law which is in-

to make every reasonable effort to settle such dispute

either by negotiation or with the aid of any available

' governmental machinery of ene or ies es

_arbitration.”

| 29a"

APPENDIX D

Nennae

—

Summary of evidence relating to exhaustion of System’

‘Board remedy.

' There were two series of cases which the union was seek-

ing to have processed. The first involved the six suspended

employees (herein, No. 61, Oct. Term, 1962), and the sec-

- ond, frequently called the “withheld from service cases,” in-

volved the grievance cases in the instant petition for cer-

tiorari. The contact required that a “deadlock” exist before

a case would be-referable to a neutral.* The company. refused

to submit both sets of cases to the same neutral, ins‘sting:

that no deadlock had yet occurred in’ the withheld from

"service cases (Plaintiff's Ex. 4-C, U-36, letter of October-24,

- 1958). The National Mediation Board, which appoints the

neutral, advised that the neutral would hear only cases which |

both parties agreed were properly before the system board.

Therefore, the union, on November 7, 1958 (Plaintiff’s Ex. .

10), wrote the Mediation Board as follows:

“With respect to the ‘held out of service’ cases covered

by my letter of September 23, Mr. Howe takes the posi--

tion that theré is no existing deadlock. in the System

Board and that therefore the request for a neutral is not —

properly presented at this time. Mr. Howe concludes his

letter by stating that Central Airlines is agreeable: to

. having Mr. Robertson act as.a neutral on the suspension |

and discharge cases which are recognized by the carrier

as deadlock disputes. :

-*The System Board agreement does not ager for any time limit in

which the union and company Board members shall complete consider-

- .ation-of the case. Paragraph M.of the Agreeme:.t (p. 43 of the eontract)

simply provides that if the Board fails to reach a decision it shall en- . |

deavor to agree within 30 days upon a- procedure for breaking such a

deadlock. The 30-day provision does not begin to run until deadlock has

occurred. (Pl. Ex. 4-A.) bane Rat :

-—

30a

“In the interests of avoiding confusion in the record

before the Mediation Board and the neutral referee and. .

eliminating as much as possible unnecessary disagree-.

ment between the parties on procedure, and as suggested -

. by your letter of October 30 to Mr. Howe, a copy of

which was sent to me, / am at this time withdrawing

‘the request contained in my letter of September 23 for

- the appointment ofa neutral to resolve the ‘held out of -

service’ disputes without waiving any right of the Inter-

_ national Association of Machinists to later request the

- appointment of a neutral and with the hope that this

disagreement between the Machinists and Central Air-

lines on the further processing of these cases may be

amicably resolved by them.”” (Emphasis added. )

The parties then made arrangements for the hearing and

_ held the hearing in the’ cases involving: the six suspended

employees (S. F.-382-417), and agreed, according to undis- .

puted testimony (S. F. 406-408), that they would take up.

the instant cases after neutral Robertson completed the other

hearing. It was not until several months later, specifically on

June 24, 1959, that the company indicated for the first time

- that it would refuse to process the instant cases before the:

system board (Plaintiff's Ex. 4C, U-44, S. F. 409-410).

Up to that time-it had maintained that no deadlock existed -

_ because the union had not completed presentation of its case,

and that the board would “recess indefinitely” until certain

live rather: than written evidence was introduced. (State-

ment of F. E. Howe at July 3, 1958, hearing.) Relying on

that statement, the union attempted to meet the company’s

objections, only to learn—long after it had temporarily with- -

drawn its request for a neutral but reserving its rights—

that the company had reversed its position and was refusing

».

Caran dee

eee vee

to participate ‘further. A hearing was called. he June 29,

1959, at which time the company Board members “walked

out”: (Pl, Ex. 4, pp. 24-25.) The union members of the sys-_

. tem board finally attempted to obtain an executive session —

to declare a deadlock, but the company members failed to

show up (S. F. 412-413). It was undisputed that the dead-

- Jock was impossible without company participation {S.. F.

-417) and the National Mediation Board would not appoint

a neutral without agreement of the parties (Plaintiff’s Ex.

4-C, - 87 and ad and Plaintiff's se Q9and10). *

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.