Petition for Writ of Certiorari — Heath v. Celebrezze

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. we CY See Gttice-Supreme Court, U.S. .

: te “FILED

©. * i ’ 5 a

pee eh |_YAN 26 1963

JOHN F. DAVIS, CLERK

: IN THE

| Supreme Court nf the Wunited States

Qeroper Trem, 1962

. “PLIGHT ENG&NEERS’ INTERNATIONAL a

ASSOCIATION, EAL CHAPTER, AFL-CIO,

; PETITIONER

VS.

MASTERN ATR LINE S, ING,

y . RESPONDE NT°

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS ,

FOR THE vor CIRCUIT sto

: — =

| | —

L. J. GROMFINE,

HERMAN STERNSTEIN,

J Winuiam BE. Peer,

1001 Connecticut Ave., N.W.

Washington, D.C!

| Attorneys ,for- Petitioner

Of Counsel: : . < oy

ZIMPING, GROMFINE anid STERNSTEIN,

1001 Connecticut Avenue, N.W.

Washington, D. C..

4 ?

7 ak. Fee '

« INDEX

OEENTON BELOW | °

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“JT RISDICTION

aa} ; ma

QEESTIONS PRESENTED

. “

STATUTORY -PROVESEONS INVOLVER

STATEMENT wa

RIE ASONS Fah GRANTING THE WRIT

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the, Recqnu Ss Bot Notes and

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the Failure te @ongply With Thase-R

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CHING TURIN

APPENIHCES :

A? Ber Curian Oni joaoaf the Court

Be Upimion the District Cour

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ta Hs

: Th

ss - AUTHORITIES

Amyriecan Airlines v.. ALBA, 169 F. Supp. 777) S.DINY..

T4538 } : : j; =

? 7)

Birmingham Trust d& Savings Co. v. Atlante, Bod AR R.,

271 Fed. 731 eh Ga WW. oe

Lise ve ¥. Zerbst, 295 Tt. ee (1935,

Grand International Brotherhood v. Morphy, 109 F.2d 976

Ma Cirss. cert. denvetP 310 US. 635 (1940)

: . 23 Pe ° ‘ ,

SF Howard v. Sh Lowis-San Francisco Ry, 19% F 2d 4420 (sth

Cie, 1952) © te... a ea eee reer

International Union of Operdting Baayincers Vo Dahlem C.

struction Co, 193 B24 470 (6th Cir, 1951) ‘ wae

Lochl. No. 156, United ‘Packinghouse Workers of Amerred, ~

Ms, NLRB. 670 (1957) A hen oie eee : ‘yo

Ord ef ney ad Telegraphers ef agRiy I I press. L fene ‘ty °

321 US. 342 (1944). ....... adil oe he

oN . <

Pan American, World _Airways, Tne. v.. Plight) Engineers”

In crnational Assoc lation, PAA "hapter, APL-CIOL oi) ;

LR EM. 2801 (2d Cir, 1962) 1a, 28,12

> bute id <i P cet

IMitshurgi & Lake Erte RAR. Vv. Brotherhood of Railroad

cme Praiaen, Wo KF, Supp. 271 - (WD. Dy W3at * 6.4 ws

’ is} “e

PulimanCeo. voOrder of Railway Conductgrs and Brake pe Ry ee

49 L.RRM. 3168 OND: T1962). 2.20... a 18

metwny, Emp cuaea! Co-op Association vo Atlanti®. Bo a

R ‘Ke, 2B Supp. 510 Macias Ga. 193s) 1s

Rail vad Ygrdmosters of: America ea mnsylrania RM. se

F.2d 226 or Fs NON ailiv as inksncharbceig tnivabiaocmaie

Retail Clerks Palatanbional Association, Local Ne. 1: 4, 109

babe

N.LLRLB. 754 (1954) 2”. ssgrssnensindocee

¢ ¥ ® ) . - x 3 ; ~

Rolfes vo Dwellingham, 198 F.2d 591 (sth Cir, d9o2

Uniled Wine Workers of America, Distriet 30, 117 NALROB.

220) * 1957 ; Serene cewecccccccececscssstendesescessseweseesees ead kbiat seece .

os ‘ . 4 ‘ \

- + e *. ey

oe,

er ee ect eed Cera

STATUTES = £§#-— “

7 * : S ; :

Labor Management Relations Act, 1947, as “dinended, 29 — .

USC. § 141 et seq: ’

Section 8(M) os TUNES

Railway Labor‘Act, as ainended, 45 U'S.C. § 151 et seq:

NN tt MIN vnc cera ts ho Oh Ae fo 8 ..- 9, 23a

e . . : .

Sic R= cn rg a. & oe

c Ae PALAIS in og ag as EL ee Oe

Section 10 ................. piledaecumletelons iseclainassneicatacccixes =) 6,

MISCELLANEOUS °

~ F . r é ®

. , , Hearings Before the Subcommittee of the. Senate Committee .

on Interstate Commerce on S. 2646, 68th Cong.,.Ist Sess... «10

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° °

10.4

vs :

IN THE

Supreme Court of thr United States.

° OCTOBER recy 1962

ane

“€

‘ °

No, .—--

= FLIGHT ENGINEERS’ INTERNATIONAL

ASSOCIATION, BAL CHAPTER, AFL-CIO,

. PETITIONER:

: Sa et vs, :

: KASTERN AIR LINES, INC,

RESPONDENT

—

PETITIUN FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SECOND “— -

To the Honorable the Chief Justice of the United States

‘and tho Associate Justice’of the Supreme Court of the

United States: Dh Bs

.Petitfoner, Flight Engineers’ International Association,

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

issue to review the judgment of the United States Court of

Appeals for the Second Circuit.

. °’ OPINION BELOW

The per curiam ‘opinion of the Court below.( Appendix A,

wifra, pe la) is no® vet reported officially it is reported

io. unofficially at 51 L.R.R.M. 2038, e

: The opinion of the District Court (Appendix B, infra, p.

ee 2a) is not officially reported: it is unofficially reported at

50 L.R.R.M. 2929.

JURISDICTION | .° - | ~

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

§ 1254. The judgment of the Court below was: entered on, of!

August 30, 1962. By an Order dated November’ 23, 1962,

er . $.

° 4 ‘

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

a writ of certiorari in this cause to and including January

26, 1963.

Jurisdiction of thg District Court was based upon 28.

U.S.C. § 1587.

QUESTIONS PRESENTED ;

1. Is an air carrier subject to the Railway Labor Act, 45

U.S.C. §§ 151-188, free to effect unilateral changes in a col- .

leetive bargaining agreenient without first complying with

Section 6 of the Act by serving upon the Union representing

the emplpyees a thirty-day notice of the specific intended

changes¥and without exhausting,’ as to those specific in-

tended changes, the ‘procedures for, conferences, mediation,

and an Emergency Board provided for in Sections 6 dD, 6 and

10 - the Act? - & ° ;

. Does a Union waive the right to insist that the Section

6 watien be served, and that the other statutory procedures

be followed, before the carrier may unilaterally implement

Specific intended changes, by having participated in collee-

‘tive bargaining negotiations and Emergency Beard pro-

ceedings dealing with other issues in which the carrier’s

demands for changes as to which no notiee had been served

were unilaterally injected by the carrier gver the protest

of the Union against the failure of the edrrier.to comply

with the noti¢ée and mediatory processes of the Act?

. As a matter of law, under the Railway dLabor ct

thay a good faith collective - bargainine i impasse b€tween an

air carrier and a representative of the employees be found

to exist, thereby permitting the carrier to effect unilateral

changes in working conditions and to ‘deal individually with

its employees, where the air carrier ‘has not complied with

the procedures of Sections 5, € and 10° of the ‘Act with re:

spect to those specific matters.as to which unilateral changes

are made?

: , STATUTORY PROVISIONS INVOLVED.

The pertinent statutory provisions of ‘the. Railway La

bor Act ae in. this cause are set out m = in

infra, p. 2 ‘

‘6

_ STATEMENT

Petitioner, somethnes hereinafter referred to as EAL

_Chapter, is a labor organization duly designated by the

employees and certified by the National Mediation Board

as the collectf¥ve bargaining representative of all qnployees

of Respondent, Eastern Air Lines, ingthe class or eraft of

Flight Engineers. On December 31, 1958, EAL Chapter.

and Eastern entered into a collective bargaining agree.-

ment which was to contimue in. force until April 1, 1960,

renewable there&fter on an annual basis unless written

noticg of intended change in the agmement was served by

either party thirty days prior to April 1 of any vear, as

required by Section 6 of the Raiway Labor Act, 45 U.S-C.

4156. Gees / ae

. . J s 7 s

in February, 1960, BA 4, Chapter and Eastetn, exchanged

notices of intended changes in the Flight Engineers’ Agree

ment pursuant to Section 6 ef the Act and in‘aecordance

with th® provisions of said Agreement. The changes coy

ered. by these Section 6 notices were limited to so-called

‘economic issues,’’ nantely, wages, hours “iind working

‘conditions. In neither of these notices did Eastern or EAI. ies

Chapter seek to change Section I] B 2 of the Flight Engi.

neers’ Agreement which requires all Flight Engineers to-

possess the special A.& FE, license;' nor did these notices

relate to any additional trainir.g, specifitally -pilot training,

for Flight Engineers as a pre-condition to.serting as Flight

Engineers on jet aircraft @nor did these notices relate. in

any way tosthe “seope clause” of the Flight Engitieers’

Agreement, Seetion XTX H, whieh section requires a Flight

Engineer from the setiiority list of the EAL Chapter to he

_ 'Seetion IT B 2 provides that: ‘‘Every Flight Engineei Mhploved

by the Company wil) be requited to have a mechanies certificate.

With power plant and air frame ratings (A & FE license’ or at the

time of hiring he will be required to have the necessary mechanica

background te obtain such certificate, and he shall be required to

obtain such certificate prior to the completion of twelve months of

active service as a checked out Flight Engineer with the Com ny.

Failyre to compiy with the above ae cause the termination othe

Flight Engineers. employment.”’ x a

v. ‘ ; 4

assigned as a crew ‘denmbr on certain aircraft? In short,

neither of these notices related. in any Way to ‘those issues

"2 which have become known as the ‘‘crew complement’’ 1s 14-

—

sues. With respect to these issues, both EAL Chapter and

Eastern were content to continue in effect the contract pro-

visions of the December 31, 1955, Blight Engineers’ Agree-

‘

® Section - XIX: H provides that: “<A Flight Engineer, who is

included ‘ofi the seniority list provided for-and covered by this

"avreement, shall be‘assign’d to, and serve at the Flight Engineer

station on all flights, without regard to. th® type of equipment used

and operated, in all ‘instances whety a coe kpit Afght crew member

in exeess of two is assigned’to perform the flight engineering func-

tian. Ths agreement shall. be applicable toall flights and to the

operation and use of ajl ty nes of equypRent witheut regard to any

other name or @éscripfion by which thg}/fight engineering function

mev be designateti: Provided,“ howev@, that if the regulation of

any gavernment agency require that, Yn the use and operaticn of

any specified twpe of equipment, al! members of a minimum eockpit

flight crew of three or more, on such’ equipment shall possess, spe-

rifed qualiéeations and /or spesified licenses which are not solely

incident or pecessary to ‘the perinemaies of the flight engineering

fonction, the pew nae Toi «rew Who 1s to, or does,

-pertor:o the flight enggneering fur ition shall be selected and as-

“signed frém the Seniority list, cove, hy ‘this agreement, of Flight

Enginéters” who-may possess or aequire the qualifications and/or

Jieenses require? by such regulations: Provided, further that the

Company will not ente: into any collective bargaining agreement,

with any other organization or associatjon, covering employees *ho

perform the fitght engineemue #inction so long as the certification

of the Assoc lation as bargaining représentative for such employees

remains in effect : and Provided, further that“‘the flight engineér-

ing fanetion’’ as used herein is defined to mean that function as it

is generally knewn.”’

s By wax of dicta the Court below. sugg sted that EAL Chapter

“mat have opened’ the crew complement issues by its own Section

€ notice, ‘p. 14a. enfra. This simply is net so. The suggestion is

unfortunatesand‘resu#ts from a misrepresentation of the facts by

Easterti orm oral argument. The * ‘mediation agreement’’ was an

agreement signed by Eastern ip which it (1» agreed to withdraw

pilot qualifteations for flight engineers unilaterally imposed during

the 1958 strike, and (2) ggreed not to reimpose such qualifications

without having first strved a Section 6 notice upon Eg Chapter

Easfern has now abrogated this mediation agreement. ;

“The ‘A & E waiver’’ reference is to a letter agre sent signed

many vears ago in which EAL Chapter waived its rigt« to have al!

flight engineers possess an A & E license for those few flight engi-

neers who did not possess the license prior*to the contractual re-

. : . f , 9

» . . 2:

/ “ : ‘

Extensive negotiations over the change: proposed by the

Soot tion 6 notices failed to produce a row agreement, and

‘in. July, 1960, under Section 5 of the Act, 45 U.S.C, ¢ 155,

the mediation services of the National Mediation Board

were ‘invoked on these ‘‘economic’’ issues. Fourteen

months later, on September 5, 1961, the Bourd notified the

parties that ecaug. the mediatign services hade produced

no new agreemént ithese setvices were eing terminated.

On February 22, 1962, the President of the United States

established Emergency Board No. 144 under Section 10 of

the Act, 45 U.S.C. 4 160, to investigate the dispate and

report to him its re commendations gfor, settlement. The

repert of the Emergency Board was submitted to the Presi-

dent May 1, 1962.

During the 1961 ‘Ww gotiations between EAL C Hapte r and

Eastern, Eastern igjected into the negotiations on the **eco-

anomie issues”? certain demands for changes’ in the collec

tive bargaining agreegpepton Lint — crew complement.”’

Le=T insisted that the A & E license qualifications pro-

vided for in Section IT B 2 af the Flight Engineers’? Agree

ment be eliminated; that the ‘*seope clause?’ of the Agree-

ment also be eliininated;’and that’ the Flight Engiteers

be required to obtain ce rtain pilot training, in addition to

Flight Engineer training, as a pre condition to_se rving on

jet equipment. EAL- Chapter d?seussed these “erew gom-

plement’’ issues with Eas<temm; but at no time did it con-

cede that by so doing’ it was starting in motion a process

-that would ultimately permit Eastern unilaterally to change .

the ‘‘erew complement’? provisions or to take self-help in

support of the changes it was seeking. On the contrary,

EAL Chapter continued to insist that until changed by

voluntary agreement, or by the procedures of the Act in-

quirement in Seetion Il B 2. This was a ‘‘grandfather rights”

agreement only. It has nothing whatever to do with the current:

proposal of Eastern és eliminate the A & E license entirely.

By suggesting, * nese two items he renewed without change PAL

Chapter | did not ‘‘open’’ them up generally under, Section 6 of the

Act.sA Szetion 6 notice of * ‘intended,change”’ Would have no mean-

ing if- the intent to renew wifhout change aiso constitutes a Section

er: opener. e

” changed. °

: 6

~ ‘ ! ; ;

itiated with a proper Section-6 notice, the ‘‘erew comple-

ment’™ provisions of gthe agreement would remain un-

P a

In February, 1962, upon the appointment of the Emer-

gency Beard, Eastern claimed that the ‘“crew compiement”’

issues were open for presentation to the Emergency Board ®

eveu though they had not been the subject of a Section 6

notice under thé Act. EAL Chapter, on the otheg hand,

argued that only those issues whych- had been the subject

of the Seetion.6 notices in 1960 could’ be presented to the

Emergency Board Tor. its consideration and recommenda-

tions. 2 | *

~ Despite the position of EAL Chapter, Eastern insisted

upon presenting the ‘‘crew complement” issues to the

wereeucs | vEere oe ae ron intr an tar tue Crew

complement’? demands by astern were not a proper sub-

ject of negotiations and were not properly before the Emer-

veney. Board, ,EAL Chapter explicitly refused to present x

any evidence to the Emergency Board on these issues.

At the conclusion of the Emer rgency Board hearings,

HAL Chapter again ex — ifs position on the’ Board’s

consideration of the ‘‘erew complement’’ issues: EAL |

Chapter conceded that the Board was obligated to make an

investigation of the faets of the dispute between it and

Fastern and report thereon to the President, and if it were

‘the Board's judgment thaf the report to the’ President

should ‘include recommendations on the ‘‘erew comple-

ment’’ issues, there was no way EAL Chapter cou!d pre-

vent it from doing so. However, EAL Chapter made clear.

its position that while the parties would be free voluntarily

to settle the ‘‘crew complement’’ issues in accordance with

recommendations of the Emergency Board, the fact that

such recommendations were made could not remove the -

statutory bar to nnilat eral changes by either party in the

‘‘erew complement’’ provisions of. the agreement because

the prerequisites to Poard consideration and recommenda-

tions on theae issues had not been met. The Board, in its.

report.to the President, noted the position of EAL Chapter. ;

3 2 |

Following the report of the Emergency Board, EAL

_Chapter and Eastern continued to meet. Keustern, rather

than directing its efforts toward a settlement of the ‘‘eco-

uomic’’ issues, continued to divert attention of the nego-

tiators to its ‘‘ecrew complement’? demands. Settlement

of the dispute and the execution of a new collective bar-

gaining agreement were thereby frustrated. On June 23,

1962, EAL Chapter engaged in a work-stoppage against

Eastern im support of its contract demands. This work.

stoppage confinues. Meee,

‘On July 1s, 1962, while the strike Was In progress, Eust-

ern sent a letter to each striking Flight Engineer. . This

letter constituted an ultimatum to. the effect that unless

the strikers Git php stricter nT work Ol OF

before July 24, 1962, under the, same ‘crew complement’

conditions EAL Chapter had re fused to accept, each striker

would be permanently replaced by ‘copilets who were be inge

‘recalled and were being given Flight Engineers’ trailing.

Thesé copilets did not possess and are not required to pos-

sess an A & E Hicense as required by the Fleht Engineers’

Agreement. Furthermore, these copilots were not selected

from the Flight Engineers’ seniority liets, as required, by

Jause’’ of the Flight Engineers’ Agreement.

Thus, in two important respects Eastern had+unilateralby

modifie d the terms and conditions of the agreement with

EAL Chapter, despite theefact that as to neither of those

changes had a Section 6 notice ever been filed.

the ‘scope ¢

Five davs after this ultimatum was served, the then

Secretary of Labor, Arthur J. Goldberg, proposed a method

for settling the dispute. Eastern immediately rejected

the proposal. ‘EAL Chapter, on the other hand, accepted

the proposed settlement and agreed to return to work im

mediately, thus insuring prompt resumption air trans

portation service by Eastern. “ae

On July 24, 1962, only a 5 aie prior to the expiration

of ‘the time which the. Flight Engineers‘ had been given

to accept the ultimatum of Eastern, FAL Chapter filed a

complaint in the District Court and sought # temporary re

“A

- &

straining os against, Eastern, prohibigang Eastern from

inter alia: (7) placing into effect changes in working con-

ditions of . light Enyineers without first serving a Section

6 notice under the Railway Labor Act, and exhausting the

procedures of Sections 5, 6 and 10 of the Act, aud (2) bar-

gaining directly with individual Flight Engineers. The

re straining order was not granted, but an order to show

cause why a preliminary injunction should ngt be entered

was. ‘On, August 10, 1962, the District Court denied the

motion of EAL Chapter for a preliminary injunction, in

the opinion attacped bets oe sap. an immediate

appeal was taken to the United States Court of App#als

_ for the Second Cireuit. On August 30, 1962, the «& urt of

Appeals in a per curiam opinion (Appendix A) affirmed

. the order of the District Court.

It is from this decision that Petitioner appeals to this

Court. aes ’

REASONS FOR GRANTING THE WRIT ze

I. This Case Presents pb the Utmost Importance

To the: Proper Interpretatiom and Application of «The

_ Railway Labor Act and the Administration of National

Labor Policy Embodied Therein.

The Court below held that Eastern was free io put-into

effect its “crew complement’? demands unilaterally and did

not violate the Railway Labor Act in so doing, despite the

failure of Eastern to give thirty days’ written notice of

intended change as required by Section 6 of the Act, and

despite Eastern’s failure to otherwise comply with and ex-

haust the mediatory and Emergency Board procedures

-of SecMons 5, 6 and 10 of the Act with respect to those de-

mands. The: decision by the Court below held further

that FAL Chapter waived its right to a Section 6 notice

onthe ‘terew complement’’ issues and its righ

tion of the proceduresof Sections 5, 6 and 10 of the Act

with respect to these ‘‘ecrew complement” issues by bargain.

ing with Eastern over these issues.

The decision of the Court, below is in conflict with the

y ne .

plain wording and meaning of ‘the statutory provisions in-

volved, specifically Section 6 and Segtion 2, Seventh, and

is in conflict with the decision of this Court in Order of

Railroad Telegraphers v. Radway Express Agency, 32

U.S. 342 (1944), wherein the Court said,

‘We hold that the failure of the carrief to proceed as

“provided by the Railway Labor Act of 1926, then ap-

plicable, left the collective agree ment in force,through-

out the period and that the c: irrie r’s effyrts to angdity

its sti through [Gy id tert teenie

tective.’” “321 U JS. at 347. ;

Seetion 6 of the Act pr vides that a carrier ‘shall give®

‘at least thirty days’ written notice of in intended change _

“7? Section®% Seventh, of the Act provides that ‘‘no

carrier... shall change ... working conditions of its

employees except in the manner prescribed in such agree-

ments er in Section 6 of this Act.?’ P. 22a, ofra. The word

‘shall’? can only be read as giving rise to a mandatory ob-

ligation on the nart of Eastern. Escoe v. Zerbst, 290 US.

—- 490, 493 (1935). The reguirements:o& Section 6 are manda-

tory ones rather than directory,

The ‘legislative history of the Railway Labor Act in-

dicates that the duties ‘imposed by Section 6 are manda-

tory and must be strictly adhere d The duty impose d

in Scetion 6 was preceded by Title fe) the Transportation

Act of 1920. (41 Stat. 456). The io ns of that. Act

were considered inadequi ite to avo erruptions to com —_

meree, In 1922,.a strike by railroad shop-emen Causegeart

of the most widespread and enduring sty in the last

fifty years. That strike arose of the practice on the

part of the carrie contracting: out to lower paying ———

contract ork that would have otherwise heen performed

yy their own shop-men. In 1924, the Railway Labor organi-

zations sponsored the Howeli-Barkley bill which contained

provisions which proved to be the forerunner of those con-

tained in Section 6, prohibiting changes in rates of pay,

rules. or working condition’ without notice and conferences

with the representathves of the employees, hoping thus

te avoid situations that had caused the shop-men's strike

! .

? .

The chief witness appearing forythe employees testitied

(Hearings Before the Subcommittee of the Senate Com-

mittee on Intersfate Commerce, on S. 2646, 68th Cong., Ist

Sess., pp- 19-20, 22): , ° 2

‘Certainly the power on the one hand and fear on

the other hand of arbitrary change will breed discord,

« not harmony. “Therefore, it,is provided in secon 6

,. ii

tht ith tT aT eas! JU days written

notice of'an intended change’ and that a time and place

of conference shall b® agreed upon. Thereafter, a

change is prohibited until the machinery for peaceful

adjustment has been full? utilized... .

‘This prohibition against arbitrary action is a clear

necessity in founding industrial peace upon contractual ©

obligations.”” 5

° ° ° e@ ry “ears ° e

“s | Take, for example, the situation which was.the

‘ause of the shop eraft strike, one’of the main causes

of it was that the railroads contracted out entire shops

without notice and the men were then told that if they

wanted employment they would have to go to the pri-'

vate contractor, who then offered them a wage and

working conditions entirely different from what had

Hin heel wn yhe road. That was,an example of

arbitrary action.””

In 1925 the representatives of ‘the carriers and 6f organ-

ized railway employeed agreed on a revised version of ‘the

Howell Barkley Bill, which in 1926 was enacted as the

Railway Labor Act of 1926.

The Court below did not consider this important legis-

lative H@tory, and in so doing iailed te give the notigp and’

other procedural requirgnents of the Act the significance

intended by its sponsors. It is unlikely ‘organized labor

would have supported the legislation if it had ‘known that

the day would come when the procedural requirements it

had struggled to obtain would be read out of the Act on,

the ground that to do other@ise is to ‘‘give precedence to

form over substance."’ Appendix B, pp. 13a-l4a, infra.

_ As already related above, p. 9, the Supreme Court

long age determined that conduct like ‘Fastern’s here of

“ape ae ah”

failing to give a Section 6 noticeaf intended change is ub

lawful. The Court e Order of Railroad Telegraphers v.

Railwau Express Agency, 321 U.S. 342 (1944), held anter

alia that because the Company had failed to give-the Union

the required thirty days’ written notice of intended change

proviced for in Section ft tbe Atte Company Wis

——Tirred 1nom giving effect to the changes.

The decisions of the sevéral Courts of Appeals are in

accord: with this decision of the Supreme Court. Without

exception, anti} the instant case, the tourts of Appeals

had held that the failure of a carrier to proceed in accord.

ance with the provisions of Section 6 renders the changes

null and yaid. In: Radroad Yardmasters of America v¥-

Pennsylvania R. R.. 224 F.2d 226, 250 (3rd Cir.-1955), the

Court affirmed the issuance of a preliminary injunction by

the lower court which had been in part based upon the

finding by the District Court tha the carrier had threatened

changes in the collective bargaining agreément which had

not been made in accordanes with the thirty davs* netice re

mulrements of Section 6 of the Act. :

mf , ih ¢ a ;

See also Rolfes v. Dwellingham, J98 F.2d S91 (sth Cir

1952). and “sabe v. St. Lewst-San Francises Ry., 191

F.2d 442 (8th Cir. M51}, to the efféct that a carrier violates

‘the Railway Labor Act by failing to give the thirty days’:

notice of intended change required by Section 6 of the Act

hefore putting into effect changes in the agreement. :

Eastern, in addition to failing to serve the required thirty

davs* notice under Section 6, has failed to otherwise com-,

ply with and exhaust the other mandatory procedural re

quirements of Sections 5, 6 and 10 of the Act which are

prerequisite to any unilateral change in the Flight En.

gineer Agreement of December 31, 1958.

Thus, Section 6 prohibits any change in the status 4uo

unti! thitty days have elapsed after the termination of the

medi ation services of the National Mediation Board under

Section Sof the Act. Eastern has not even requested ¢

mediation services of the. Board under Section 5 with re-

enect to the ‘‘etew complement”’ issues. The Board has not

ea.

proffe red 'it its mediation sérvices with rBpect to these issues.

Ne attempt by the Board has been made to get the. parties

to resolve their ‘controv ersy by submitting it to arbitration

} be ®

under Se ction 5 of the Act. No Emme Savana [oan os eee On

appointed under Section 10 ,of the Act to > investiaggD thes

‘erew complement’ issues. Eastern flouted these proce-

dural steps when it put into effect the contract changes

respe sting these issues. ,

e decision of the Court beldw is contrary to the

sicvesanabainal decisions and conflicts with the plain lan-

guage and meaning of the Railway Labor Aet. A review

of this case by “the Supreme Court is necessary to insure

that the statutory scheme of the Railway Labor Act for

thirty days’ written, notice (Section 6), conference (Section

6), mediation (Section), and possible consideration by an’

Emergeney Board (Section 10), is not abrogated in the —

Federal C ourts bya deci ision which permits a earrier to put

into effect chariges im a collective bargaining agre@ment

without first’ adhering to the provisions of the Act.

II. This Case Presents This Court With the First Occasion

to Consider the Important Question of Whether the Re-

quirements for Notice and Mediation Set Forth in The

- Railway Labor Act May Be Deemed to Have Been

Waived Where ‘the Party Complaining of the Failure

to Comply With Those Requirements Has Participated

in Negotiations and an Emergency Board Which, Qver

’ ~ Its Objections, Dealt With the Issues‘as the

Statutory Requireme ot Been Met. ~

This case presefits for the first time before this Court

the question whether under the R: ailway Labor Act an air

carrier may alter workiug conditions without caving com-

plied with the mandatory procedures of the Act simply bes

eause the carrier and the Union have engaged.in bargaining

over those issues at the behest of the carrier, and simply

because the ¢ carrier was: permitted to present these issues

to an Emergency Board established to investigate a dis-

pute between the parties. EAL ‘Chapter submits that the

_decision below holding that Eastern has complied with the

aaa

. : Pel

oe Hailway Labor Act, is clearly wrong and if permitted /to

stand will render havoc with dabor-management mee:

tions under the Railway Labor Act, and {| thus ete *

sallway te

pritiary : statutory purpose of promoting labor- cenaenent

peace in the railroad and airline industries.

EAL ¢ ‘hapter, by insisting thate it is entitled to thirty

days’ written notice from Eastern indicating Hastern’s in-

tention to put “the ‘terew complement”’ conditions into ef-

fect, and by insisting that the ‘terew complement”’ issués be

processed through the mandatory procedures of mediation

‘and Kmergency Board consideration, is not attempting to

‘give precedence to form over substane e,’? as held by the

District Court.{ Appendix A, fra, pp. a-l4a), any more

than Congress intended Section 2, Seventh and Section 6 to-

serve no purpose whatsoever and should be read iy such a

way as to render their provisions directory rather than

mandatory. Real meaning and substantive purpose are

served by the notice requirements of Section 6 and by strict

adherence to the other proc edural requirements of Sections

5 and 10.

The substantive purpose served by Section 6 is obvious.

The prima®y. objective of the Act is: to achieve peaceful

settlement of labor.disputes through negotiation, mediation

and, where agreed to by the parties, final and binding arhi-

tration. ‘A Section 6 notice serves two related purposes:

(1) it advises the other party and the National Mediation

Board of the nature of the dispute, and (2) it defines the

precise area in which, upon the expiration of the statutogy

waiting periods,. ‘*self-help’s maybe exercised.

Throughout the thirty-six years of collective bargaining ,

experience under the Railway Labor- Act, both sides could

be assured, by virtue of Section’6 and Section 2, Seventh

of the Act, of the specifie corifines in which the other side.

was free to exercise self-help; and could thus recognize

those areas in which hard’hargaining toward settlement

was needed in order‘to avoid the economic consequences of

the ultimate resort to self-help, To be sure, in many nego-

tiations one party or the other has injected issues not gaised

° ¢

os 8

by’a Section 6 notice. When that has been. done, each'sidg_

Ne ee SorTrrreeerirta

fas recoguized Uat while it is Iree to reach a settlement”

which deals with those issues, neither side, may exercise -

self-help with réspect to those issues until all of the proce-

dures, beginning with a Sect ion 6 notice, have been complied

with. The decision of the-Court below. now comes to say,

however, that when Section 6 notices have been filed deal-

ing with issues A, B and C,* the injection ‘by one of the

parties of issue D at any time during the negotiations has

the sameceffect as if a Section 6 notice were filed, and the

only way. that the“other party can avoid that consequence

is to refuse.to even talk about issue D, and thereby gisk

. breaking down neotiationy on issues A, B, and C. And, if

it does not refuse to talk ewbout issue D, but discusses it

briefly and then drops the matter, how can it be sure

whether it will be found to have uegotiated beyond the

point where it can no longer object to the lack of a Section

6: notice? _ 2

The effect of the decision below is to create chaos in col-

lective bargaining in the railroad and airline industries.

Neither side can have know ledge: of those arda>, and on

what issues, hard bargaiming” must be centered. Either

party stanidn free to‘inject new issues, subsequent to the

filing of_a Section 6.notice specific and limited is its terms,

into the negotiations. As the timeeat which the parties will

be free to exercise’self-help approaches, neither will*be able

to sdy with certainty or what issues thé precedures of the

‘Act have been exhausted and on what issues they have note

The likelihood of agreements resulting from collective bar-

gaining conducted uader euch handicaps 1 is nil. This is the

antithesis of the result sought by the en&ctment of the Rail-

way Labor Act. was :

In a closely related factual situation the Courts have

indicated the importance “of the pargies being fully aware

‘Tt must be remembered that Section 6 of the Act does not

merely establish theduty to serve a gencral notice of an intent to

modify or open an existing agreement ;.it speaks specifically of the

~ dnty to serve a notice “‘of an intended change."’

. ate _ do }

. : ie Q 2

of the consequences of their failure to agr robs In Pittsbu

& Lake Erie R.&. v. Brotherhoud ef Raitroad Traimmen, ,

179 F. Supp. 271 AWD. Pac 1959), the Court faced the

question whether under the Railway Labor Act the proffer

of émergency mediation segvices by the National Mediation

Board produced a second thirty-day cooling-olf period after

‘the procédures of the Act had qtherwise been exhausted.

The Court held that a second thirty-day cooling-off period

not contemplated by the Act. In so holding the Court ‘

‘i wit with approval an amicus curiae*brief tiled gy the Na- °

tional Mediation Board. in which the Board noted the im-

partance of. the:pressure upon the parties to the dispute

’ “when faced with expiration of the. thicty-day cooling-off

period. The Board stated; *

‘*In controversies of the type which come before the

Board ander Section 5, First, sueéesstul termjnation

through mediation or arbitration requires séme willing:

. ‘ness by the parties involved to adjust or compromise,

| the points in dispute. Realization that failure to

¢ achieve settlement will lewd, ‘oy is likely to lead, to

«strike action at the end of a ad-day sti and-still period

puts upon both partie < pressure to ‘avoid the econse-

quences of this kind of economic warfare, seriousty in-

jurious to-each of them. . “

o ° wal, ° ° » @ ® e —

“The Board regards its sueeess ‘in such emergency -

mediation as largely due to the pressures operating

~ on both parties where the consequences of failure are

both serious and immediate. This would not be the

situation if failure of emergency mediation resulted in, ¢

the starting of another 30-day waifing’ period.’? 179

F. Supp. at 275, 276.

a, Seealso Pan American World? Airways, Tne. vy. Flight En-

aineers’ knternational Association, PAA Chapter, APL-

C10,50 L.R.RM, 2801 (2d Cir, 1962), -

Thus have the Courts recognized the importance te" sue!

cessful vollective bargaining of the parties being apprised

fully that a strike or self-help faces thém if bargaining is A

not fruitful.

' To an even greater degree is a peaceful settlement of a

dispute dependent upon knowledg@Qof the specific issues as,

- - eo

_ 16

“>

’

to which a party is free to unilaterally change upon the

failure of negotiations and the expiration of the cooling-off -

period. The attention of the parties must be focused and

their bargaining efforts given direction, Only if the dispute

is so narrowed and kept within the confines of the Section

6 notice is agreement likely. To held, as the Court below

in the dastanit cause has held, that Eastern was free to effect

tinlateral changes w ithou! first serving a Section 6 notice

and otherwise exhausting the mandatory procedures, of the,

Act on the *tcrew complement’? issues, can only result ina

diversion rather than gi concentration of efforts, and the

unlimited expansion of the bounds of the dispute rather

than the narrowing of the dispute.

It is no doubt true that the failure af BAL Chapter and >

astern to "reach agreement in the instant dispute can be”

divectiy attributed to the fact that Kastern’concentrated its

efforts tipou’ the *‘erew complement”? isshes, whereas EAL

‘Chapter concentrated on the economic” issues in the belief

“that the “‘erew complement’? issues had not been properly

opened under the Railway Labor Act and consequently:

could not be the subject matter of any-self-help on the part

‘of Bustern” Had Eastern, like EAL Chepter, also con-

centrated its efforts on the *teconomic”’ issues, those issues,

whiely had been opened under the Railway Labor Act and

thost issues as to which either party was free to exercise

self-help upon the expiration of the cooling-off period. of

the Aet, settlement of the dispute between the parties would

undoubtedly have been realized.

Petitioner submits that it was never contemplated by the

fromers.of the Railway Labor Act that there tould be a

‘waiver’? of the requirement that each side notify the other

of the specifie scope of the issues as to which, at the-end of .

the rond, it would be‘ free to excreise: self-helfe or institute

unilateraMehanges. .But, whether.or not Petitioner is cor-

rect in its view, it is clear, Anat tis — which has

\s noted above, p. 6, EAL, C hapter refused to agree th the sub.’

mission of the ‘erew complement "issues to the Emergeney Board

and refuse (to present any ev idence to the Emergency Board on

those issues, 4 °

never been passed upon by this Ceurt, is of eritiGal im

portance in the future admiyistration et the Act. For that

reason alone, this Petit@should be granted in this eae

~ The Decision of the\Qéurt Below Conflicts With Deci

sions of the Same Circuit, and With Decisions of Other

Courts of Appeals. } ‘

A. The decision of the Court Selowsin Belding that East-

ern did not violate the Railway Labor sAdt by altering the

‘crew complement’? working Conditions of\the Flight Butt

neers without first serving a Section 6 noNece and without

first otherwise exhiusting the mandatore® procedures of

Sections 5, 6 und 10 of the Aet, is contrary to every other

Court of Appeals decision on this question,

Several Court of Ap cE decisions contrary to the deci

sion below have already been referrert to Tove, BRE.

In addition to those, seb alsa Grand Lutevnes TH ‘ll Bivothe r

heod vy, Morphy, 100 Fivd O76 (2d (ir. «f ‘a dented SW

U.S. 685 (1940), wherein the ,Coprt reve rch. district

Court decision and held that aio er of the Dis

trict Court, inst rng! tag thi rec eiye Tota railroad 1 to alter

the wages gfthe employees wi itholat regard to the proce

ieee of the Act, Was inv@id. A A thier days’ hayt, weoot in

ended change was held to be re «quired, as Wak exhaustio

of the mediatory procedures of Section 5.

There are, in addition, three Distriet Caurt decidtns te

the same effect which are particularly iabesloae: In thes

first, Birmingham Trust & Savitas Coo, Atlantic, Bo A.

R. R., 271 Fed. 731 (XN. D. Ga. 1921), the Court held th

part

~ under Section 9 of the Newlands Act of (1913, °45 U.S.C.

<6 101-125, a receiver «the railroad was forbidden from

reducing wages of the vlovees W@hout tirst complying

with the twenty days’ notice provision of the Act. Th's

notice requirement, identical-to Section 9 ef the Erdman

¢ “Act of 1898, 30 Stat. 424, is the mre edecessor of Seetion @ of

the Railway Labor ‘Act. It is,unlikely that if notice pro

visions of this character were™ formal technieatities’ or I

they would have survived the test of time, Obvi@asly, no

tice provisions .serve the substantive purpose of diseonr

. © ¥ .

17 . a . “

; e

18 eone,

aging arbitrary and unilateral changes i in rates of pay, rules

and working conditions, of ee negotiation betw een,

the parties,gind settlement of the dispute. This was totally

ignored by the Court below. The resultant harm to labor-

management relations on Eastern needs no spelling out.

The second District Court decision; Railway Employees’

Co-op Assoctation v, Atlantic, B. d A. R.R., 22 F. Supp.

510 (D.C. Ga. 1938), inwolved a factual situation quite

‘ similar to that in the instant tause. The Railroad was a

party to a labor, agreement with the Co-op Association.

Being more’ ftv orably djsposed to bargaining with another

(company dominated) union, the Railroad and this latter

union entered intO a new agreement which abrogated the

‘terms of the Co-op agreement. “No Section 6-notice had

been given to the Co-op, nor had the other procedures of

the Act been exhausted. U nder such circumstances, the

Court enjoined the giving effect to the new > agreement as

having been exectited in violation of the Railway Labor

Act. te P Tay :

In the third case, Pullman Co. v. Order of Railway Con

ductors and Brakemen, 49 L.R.R.M. 3162 (N.D. Ill. 1962),

the Court held that a strike over new issues not the subject

of a Section 6 notice or otherwise exhausted under the. Act,

would be in Violation of the Railway Labor Act. The Court

noted thaf the Conductors ‘ich “

‘had raised new issues beyond the scope of any

notice, previously served . pursuant to Section 6

«of the Railway Labor Act. ° As tospbe isSues now in djs-

pute Petween the partiessthe pFocesses ot the Railway

‘Labor\ Act have not been exhausted.”’ 49 L.R.R.M.

B. The decision of the Court below in holding that "East-

ern, after exhausting the procedures of the Act on the ‘‘eco-

nomic”? issues and being free to‘exercise self-help with

respect to these iSsues, was also free to exercise self-help

on the *terew complement’? issues js in conflict with a de-

cision of the same circuit, but “different papel, ir an

American World Airways, Inc. v. Flight Engineers’ Inter-

a”

i tree = a : 19

amicied Association, PAA Chapter, AFL-C10, 50 L.R.RM.

2801 (2d Cir. 1962). In that cake, the issue was whether

a threatened strike was in violation of the Railway Labor ~

Act, and could be enjoined. Pan-American argued that,

since the. Natignal Mediation Board had proffered emer-

gency mediation services to the parties invan attempt to re-

solve the ‘‘erew complement’’ issues raised by- Pan-Ameri-

‘can without the benefit of a Section 6 ndtice, a strike was*

barred even though the procedures of the Act had been

exhausted over the ‘‘economic’’ issues. The Court held

the Flight Engineers were free to’ strike, on the economic

issues, regardless of the status of the t‘crew complement’

issues. Relying Heavily upon Aynerican Airfines v. ALBA,

169 F. Supp. 777 (S.D.N.Y. 1958), Judge Hays arote:

‘* As was ihe casein American Airlines [169 F. Supp.

777] the strike of the Flight Engineers which has. bee m

enjoiged is ‘a strike with respect to the subject matter

of the dispute which has been fully proce ‘ssed under

the Railway Labor Act.’ Pan-American’ s inje ection

into the situation of the erew complement issue catmet

be permitted to obscure the fact that the Flight Engi-

neers strack only to secure the very demands which

they made- in their origiyal Section 6 notice. Pan-

“American's reasons for refusing these demands are

ebviously not a part of what the Plight Engineers

struck for.’’ 50 L.R.R.M..at 2807.

Pan American stands for the proposition. that the injee-

~ tion of ‘‘crew complement’ sissues into-a-dispute over ‘eco-

9°

nomic’? issnes cannot har the parties, upon exhaustion of

the Act on the ‘“‘eeonomic?’ issues, from exercising self-

help with resy “ct to these latter i issues. Fach set of issues

in dispute hetween the parties must be treated Separately ;

each must be processed through the procedures of the Aét

separately. The parties must exhau# the procedures of the

Net on each independent. of the other i issntes before standing

fremto exercise ‘self-help’ with géspect to each. A fusion

of issues js not ecountenaneed, .” s

For the same reason, separate and ‘independent treat-

ment of issnes urfler the Act, exhaustion of the Act by

Fastern on ‘‘eeonomic’’ issues does not leave it free to

e »

_ 20

bie A ae

place into effect the **crew complement’? changes in working

conditions, any more than exhaustion of the Act by-the

Flight Engineers on the Seconomie’’ issues leaves it free

to strike on the **crew complement’? issues.

IV. The Decision Below Is Contrary to Nationa! Labor

Policy of Promoting -Peaceful Settlement of Labor-

Management Disputes Through Adherence to Statutory

Procedures Designed for Such- Purposes. .

This Court-should review the decision of the Court below

tor the additional reason that the decison represents a

substantial de ‘parture from, the National Labor Policy of

_ enforcement of statutory “procedures designed to achieve

peaceful settlement of lahor-managgment disputes through

advance notice of intended change, negotiation, mediation

and possible final and binding arbitration. :

As already indicated, the Congressional scheme for set-

tlement of labor disputes involving contract changes in the

railroad and airline industries is embedied in Sections -5,

6 and 10 of ‘the. thilway Labor Act. <All other industries.

are covered by the Labor Management Relations Act, 1947,

as ametie@, 29 U.S.C. 6 14. ef seq. The Labor Management

Relatfons 4 cf, like the Railway Labor <Aet, contains

. detailed ‘and specifie notiee procedures and ‘‘ecooting-off’’

periods which must be adhered to by the parties to the

dispute. «4 :

Section 8(d) of the Labor Management Relations Act,

24 USC. 4 158(d)}, provides in pertinent part et ;

. the duty to bargain collectively shall also mean

that mo party to such contract shall terminate or modify

sueh contract, unless the party desiring such termina-

tion ‘or modifieation-—

(1) serves a written notice upon the other party to

the contract of the proposed termination or modifica-

tion sixty dgys prior to the expiration date thereof, or

in the ev on@uch contract contains no.expiration date,

sixty davs prior to the time it is proposed to make such

termination or modification ;

<2) _offe rs to meet and confer with the other party

for the pur pose if nevotiating a new contract or a con-

tract containing the propose d moditications ;

(3) notifies the Federal Mediation and Conciliation

Service within thirty days after such notice of the ex

istence of a dispute alid simultaneously therewith noti

fies any State or Territorial agency established to me-

: diate and conciliate disputes within the Staje or Terri

Mry where the dispute oceurred, providar no agree

ment has been reached-by that time; and

(4) continues in fulk¥orce and effect, without resort.

ing to strike or lock-out, all the terms and eonditions

of the existing contraet for,a period of sixty days after

such notice is given or until the expiration date of sue!

contract, Whichever occurs later:’

e Failure to comply with these striet yotice and ‘‘cooling

off’? provisions is, by virtue of Sections (11) (5) and

8(b) (3), an unfair labor practice, and subjects the non

comply) ing party to a cease and desist order or, Hoa striking

union is involved, to a lossy the employees of thei ‘ir status-

aS tmployees protected by the Act. 2

The Courts aiid the National Labor Rel: ATER Board have

construed Seetion 8(d) striefly. No ‘waiver’? has been

equntenanced, The leading Board decision is Refad Cleri,

International Association, Local No, 1179, 109 N.L.R.B. 754

(1954), wherein the Board held that a strike, cajled more

than sixty davs after notice had been,served upon the em

plover in ‘compllahee with Section 8(d) (1), was nevertheless

illegal because the required notice to the Federal Mediation

and Conciliation Service undey Section &(d)(2) had net

‘eon served. The ‘Bosra disagreed with the eonelusion of

the Trial Examiner, that notice tothe Mediation Servi

Was a mere subordinate or an ‘‘ancillary’? aspect of fhe

‘statute, and held the provision-is mandatory. 5

of its conolusion, the Board reasoned,

n support

_ **As the legislative history bears ont, the’ purpose of

requiring notice to the Mediation Service isto provide

-for governmental mediatior in the event the notice of

intention to éhange the contract served nyion the other

party should fail to produce a.mutual settlement of the

lahor dispute within a 30-day period. Tn that event,

it is assumed, and experience has shown, correetiv, that

partigipation by the ‘Federal Mediation and Concilia-

tion Service will enhance the probability of a peaceful

settiement of the dispute. This requirement that the

parties to a labor dispute invite the- assistance of a

special service of the Federal Government ts no doubt

collateral to the negotiations by the principal parties.

However, it is no less an integral part of the scheme

evolved by Congress for achieving a higher degree of

stability in collective bargaining.*’ 109 ML.R.B. at.

758-799. Pas

The Retail Werks ease has been uniformly followed bw the

Beard. See United Mine Workers of A merica, District 50,

117 N.L.R.B. 220 (1957) (untimely notice held to same effegt

as if no notice at all had been given); Local No. 156, United

Packinghouse Workers of America, 118 N.L.R.B. 670 (1957)

(notice to state ageney, required even though the Federal

Mediation and Conciliation Service had received notice of

dispute over a month earlier and no settlement had re-

sulted). — . -

All of the Court of Appeals decisions constsuing Section

8(d) are in accord: the Section imposes mandatory obliga.

tions ; the purposes of the Seetion are incapahie of accom-

plisfmenttsless the parties are held to a strict applic ation.

See e.g. International Union of Operating Engineers v.

Dahlem Construction Co.. 198 F.2d 470 (6th Cur. 1951),

wherein the Court found that a union had committed an

unfair labor practi® by failing to notify the Federal Media-

tion and Coneiliation Service as required by Section

8(d)(3).. The Court found the provision mandatory. The

strike by the union was found illegal even though ealled

after the ‘‘eooling-off’’ period.

barge cases, esses as mandatory a statutory notice

pres for he RRR: that parties to a lnbor-sankee-

ment dispute cannot treat the duty to serve the notices re-

quired by the statute asynere ‘formal technicalities.” The

reasons are clear: substantive purposes are served by these

notice andgscooling off’ provisions, namely greater likeli-

hood sat Sporn will result.

For ‘the same reasons that the Labor Board and the

Courts have in terpreted Section S(d) of the Labor Manage -

ment Relations Act strictly, so should the Court-below have

read Section 6 of the Railway Labor Act to réfider East-

ern’s conduct unlawful. Unless the other party to a dis-

pyte is given forewarning of the confines of the’ issues on

which ‘self-help may ultimately be taken, and unless the

mediation processes_of the Railway Labor Act ame brought!

to bear on those } issues and given the opportanity to oper-

Sate, industrial strife is. lit cely, the statutory scheme is sub-

_ verted, and the public interest Suffers. The National Labor

Policy does not tolerate these adverse consequences of the

decision below. ae

Closely related to the central issue .in this cause, and cov-

ered by the third of the three Questions Ptesented, as set

forth above, p. 2. is the jssue whether Eastern was free

ato enter into negotiations with the individual strikers. Pe-

titioner does not challenge the general proposition, on which @

the Court below relied, that where a good faith imrpasse

has been reached in collective. bargaining, the carrier is

free to resort to self-help Cineluding, under oe

circumstances, dealing directly with striking employees) in

aid of ite position in the dispute.® Petitioner submits, how.

ever, that, as a matter of law no good faith Impasse * ean bet

found to exist concerning any issues as to whiclr, as An this

CASE, the requirements of Sections 5, 4, and 16 of the Act

had not been met. This is a self-evident corollary: of the

proposition already discussed that these eee of the

Act establish mandatory reanirements for notice and media-.

tion on precise requested changes in the terms and con

ditions of em@%yment. :

® Petitioner denies that. in terms of the standards by whigh this

matter must be determined, there was a good faith impasseS Whis

eontention, however: (1) raises some issues of. fact that Petitioner

recognizes are not appropriate as a basis for certiorari. and ‘?

raises some issues of law that wil! be presented to this Court in a

Petition for Certiorari in a related proceeding. Flight Engineers’

International Association. AFL-CIO, FAL Chapter, v. Eastern

Air Lines, Inc. and Air Line Pilots Associetion, 52 L RR M. 2153

24 Cir, 19Q@2). which wil! be filed with this Court presently

‘ 24

CONCLUSION

Kor the reasons set forth herein, this Petition should be

granted. -

Respecifutly submitted,

L. J. Ginomrry®,

HERMAN NSTERNSTEIN,

Wittam BK. Pers,

11} Connecticut Ave., N.W

Washington ©, D.C

Attorneys for Petittoner

ZIMRING, GROMFINE AND STERNSTEIN

1001 Connecticut Ave., N. W

Washington 6, D.C.

“Of Counsel.

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APPENDIX A :

United States Court of Appeals

' Fon tHe Seeonp Cirevn

: / ns

No, 4¢—September Term, 196] >

Argued August 21, 162 ~ Decided August 30, 1962

Docket Number 977145

Fount ssciveers INternsatioxar Associ \TTQN EAL.

CHAPTER wth Plamtiff °

against

Easterns Nan Lines, Inc., Defendant

Before LUMBARD. Chief Jtidge, Moore. and Marshall,

Cirenit gind&s

Appeal from an. order of the United States District.

. Court for the ‘Southern District of New York,

WILFRED FEINBERG, 4... denving plaintiff's apphea

‘ion for a preliminary injunction

Affirmed

PER CURIAM

the order of the District Court for the South

. f New York. which denied the motion ef the

plaintiff for a temporary injanction crestraining EAST-

ERN AIR LINES, ENC. from (1) putting into effect

norates of pay, rules and working conditions of

fight engipeers without first si rving a Section, 6 -notice

under the Railway Labor Act, 45 U.S.C. See. 151 et seq,,

and exhausting certain alleged requirements of the Act.

ehanges

arid, 2). bargaining directly with individual flight engineers

ow engaged in a strike against Fastern. for the reasons

set forth in Judg? Féinberg’s thorough .and well reasoned

opinion

% °

8 . ' 2a ;

we APPENDIX B 8

Opinion of the District Court

a pe

° s

FEINBERG, D: J. :

This is a motion for a preliminary injunction by plain-

tiff union, Flight Engineers “International Assgciation,

against defendant, Eastern Air Lines, Ine, It grows out ofa

tangled labof dispute involving ‘effects of technological

change, featherbedding and rival union. jurisdiction. Both

parties, at different stages of, the lengthy negotiations,

have exhibited something less than an acute awareness of

the needs of the public. For the reasons set ferth below,

the injunction is denied. However, such *denia®of ig

soughe by the Flight Eygineers | reflects no approval «

Eastern’s action in re us sing to accept the most recent se af

ment proposal of Secretary of Labor Goidbe Te, as set forth

in the _ papers before me. <i

. oe Ss

a I. :

The facts as theytappear from the verified complaint and

Eastern’s detailed affiday it in opposition ! are die. following.

The Flight Engineers and Eastern entered into a collective,

bargaining agreement on Decembgr 31, 1958, to be effective ;

the next day. This agreement was to continue in foree until

April 1, 1980; renewable thereafter on a yearly basis unless

notice ofch desire to change the agreement was served by

either patton the othergprior to April 1 of any year, his

— by’ Section 6 of the Railway Labor Act, 45 USA’.

§ 156 (1958) (the **Act*’).?

On February 8, 1960, the Flight Engineers served upon

“1 The Flight Engineers submitted no affidavit in support of their

motion.

2**Carriers and representatives of the employees shall give at

least thirty days’ written notice of an intended change in agree-

ments affecting rates of pay, rules or working conditions.

Railway Labor Act, § 6, as amended, 45 U.S.C. $156 (1958). Such

written notices of intended -chiange are peat referred to as

‘“section 6 notices®’ in the transportation industries.

=. .

;

ev | \ na

Easterngsuch a ‘section 6° “notice.” Eastern responded by

serving a similar notice four days later.’ Both notices were °

couched in general terms, without articulation of the spe-

cifie changes in the avgreement desired by either party.

However, in April 160, the, parties did exchanfe detailed

proposals of changes desired in the agreement, After ex-—

tensive negotiations based on these proposals failed to yield

_ a settioment, the parties, in July 1960, resorted to the me-

digtion services of the Natioual Mediation Boardyas pros

vided for under the Aeto "Tp case’ wis docketdp-by the

National Mediation. Board inf duly, and the Board pro.

eoeded too mediate the dispute,

. In the ensuing year, issue’ Vere injected into the nego-

* tiation whieh, have since become the erneial ones and

‘which were not included in the original ‘section 6" nofices

eserved in Pebruary 1460, “Prior to that time, Mastety had

signed an agreement with another union, the Air Line

Pilots ‘Association, whieh included pravision for a cockpit

crew of three pilots on jet planes, The government regu-

- lations applicable to Baustern’s operations wequire that -jet

aircraft jnd four-engine propeller airenatt carry a. basic

cockpit crew of three airmen, two of whom must be quai-

fied air pilots and one ot homimust possess a Flight Engi-

‘neor’s Certificate issued by the Federal Aviation Agency

(sFAA"). The contract between astern and thes Flight

Engineers provided that the latter would hold an FAA Air-

frame and Powerplant License ('' A&P license’’—some- *

times called an ‘A&E license,’’ the type rejuired for?

ground mechanics in addition to the FAA Flight *Engi- |

heer’s aden Ags result. ot these contracts ‘was that

astern, along. wéth other airlines, carried a basie cogkpit

8 The nnion’s notice read, iv substance Notice is hereby given

of the desire ‘of the [un mi) to make certain, changes in and

additions to [the collective Sargaining agreement] as of April

1, 1960,"" e 4

i Bastern's nofive read, in substance : “This is to advise...

that the company also desires to make’ certain changes in our

agreements with the Association.”’ ~ t

® Railway Labor Act $5, First as amended, 45 vs c. § 155,

First (1958) ; .

‘ . ". j . ¢

, : =) ae

yo :

crew of four men, one more thansrequired by FAA regu-

lations or desired by Eastern. Three of the four were pilots

represented by the Air Line Pilots Association, and ‘Yhe

other Was a flifeht engineer, holding an A&P license, repre-

sented by the Flight Engineers. 8

On February 6, 1961, the National Mediation Board, in

another case, held that ots and tight ie ‘rs ‘employed

by Unite&Air Lines constituted a single-craft or class of

employees for the purpose of collective bargaining unde:

Section 2, Ninth of the Act, 45 US. 152, Ninth (1958).

On February 17, 1961, the Flight Engineers strack Kastern

“as well ad several other airlines, seriously disrupting the

operation of the nation’s air transportation system, The

strike ended shorfly theregfter when, upon Seeretary of

Labor, Goldberg's recommendation, President Kennedy

established the so-called Feinsinger Commission to make

recommendations with respect to a settlement af the par-

ties’ dispute over the crew complement problem, « Both

Eastern and the Flight Engineers (as well as the Air Line.

Piiots Association and other airliges) participated in the

hearings before the Feinsinger Commission. The Commis-

sion issued a preliminary report on May 24, 1961, which

stated, infer alia, that both the Flight Engineers and the

Air Line Pilots Association agreed that a jet crew of three

men Was adequate and that:

“The most obvicks solution to thié problem ig merger ;

or some form of consolidation [of the two anidns}. In

the considered opinion of the Commission, neither

peace nor safety on the airlines will be fully assured

w@jong as there are two unions in the cockpit.’’*

Paili w to resolve the crew complement issue in a. man-

ner ackeptable to all parties, the Feinsinger Commission

see inal recommendations to tNe President on Octob&.

17, 1961, for a solution to the issues before it.7’ From that

time on, negotiations be tween astern and the Flight Engi-

* Feinsinger Comm'n, thesors to the President, at 42 (1961),

*Feinsinger Comm'n, Report Supplementing a Report to the

President (1961). i ak

>: :

ee. . a. b s

neers were concegisd not only with the issyes originally

raised DV the ‘tsection 67° notices bat also with the ¢rew =

-complement issue, Negotiations on the Jatter were carried

on both under the dus pices of the National Mediafton Board

at that ageney’s request” and alse with the assistance of

Professor Femsinger and U ndersecretary of Labor Willard),

Wirtz. These negotiations continued intermittently until

February 21, 1962. On that date, ‘the Flight. Engineers

served a written strike uotice on Kastern, The next day,

President Kepnédy, pursuant.to Seetion 10 of the Act, 49

USI. © 160 05s), appointed Emergency, Board No. 144

~Mhe “Emergency Board’*) to investigate certain unad.

justed disputes** between Kustern and the Flight Engi-

neers, On Mareh 26, 1962, the Emergency Board: convened

mage“ the matter‘and filed @ts report on May 1, 1962." ,

Despi w Flight Engineers’ opposition, the Emergtney

Board concluded that the issue of whether the’ recommen-

dations of the Fei “singer Commission shéuld be -imple-

mented had been submitted to it,;and that those recom-

mend: ations should be iniplemented by the Emergency Board

since they were thought to be a ‘“<critioal part of this dis-

pute [hetween the parties |e" r a

Further negotiations between Eastern and the Flight En-,

* vineers failed to reseive the issues be ‘fore them, and in iate

May the Flight Engineers served a strike notice effective

ut any time oy or after June 1, 1962. On this date, thirty

days after the Eniergency Bagerd rey ort Was issuedQo rea

President, the union was first eal tree to strike ul

* The Board, in September 1961, had notified the parties that

the union had declined to arbitrate the question before it and,

accordingly, the Board was ternipating its services under the Act.

It is not vlear from the reed whether Eustern also declined go

irbitrate at that Sime. However, after the final recommendations

of the Feinsinger Commission, the Board requested the Flight

Engineers, Eastern and other airlines.to meet with it on November

6, 1961, to seek “oan amicable adjustment of unresolved issues in-

eluding but not limited to the ree commendations of the President's

ae on the aivlines controversy.”” *

®US. Emergency Board No. 144, Repert to the President (1962).

= rd. at 6,

ay .

6a ‘ ry

the Act, 45 U.S.C. § 160 (1998). In June, the parties met

fruitlessly, and the Flight Engineers told*Kastern that any

“new agreement had to provide tray all men hired by Eastern

in the future’as flight engineers must have the A&P license, -

a position gontrary to the Keinsinger and Emergency Beard

daickaedalions Both parties, and the’ other airlines

affeeted by. the crew. complemens” issue, were exhorted by

Secretary Goldberg and President Kennedy in June to ar-

bitrate-all unresolved issues. Qn June 14, 1962, Eastern

agreed to arbitrate but the Flight Mngineers refused. On

the same day, President Kennedy, at his press conference,

‘strongly urged the Flight Engineers ‘*te either submit this

case to arbitration or agree with the carriers on some other

means of settling this dispute without any interruption of |

, 3 S

operations.’ ie ere . .

Thereafter, the president of the Flight Engineers issued

a press release which apparetitly ‘offered’? to, submit to

arbitration unresolved, econonsic issues outstanding — be-

tween gfastern and the union, although it expressly x-

— quded submission ‘of the crew complement issves. Fur-

ther negotiations between the parties: broke’ down shortly

thefeafter, ‘rand on June 23; 1962, the Flight Engineers

struck Eastern. The day before, the National Mediation

Board made a ‘proffer of mediation to the union, which

was rejected.

On June 23, 1962, the day the strike’ commenced, Presi-

dent Kennedy stated, among other things, that a sensible

solytfon was open to both parties, and he cautioned the

"Flight Eng’ veers that ‘*to persist in the strike course would

“be the heigh: of irresponsibility on their part.’? On the

~ same day, George Meany, president of AFL-CLO, made an.

effort to avoid the strike and urged the union to resume

negotiations. On Jane 25, 1962, at the request of the gov-

ernment, Kasteru ana tie Flight Engineers met in WAsh-

ingtop. A few days before, a strike betweeh Trans World

Airlines ((* TWA") aad the TWA chapter of the Flight

Sngineers had mr agate At the meetings in Washing-

ton, Eastern agreed to settlevall unresolved*issues, includ-

, Ta

ing’ the crew complement dispute, on the basis of the TWA

settlement. ‘The Flight Engineers rejected tM offer, and

stated, in effect, that they sould never give up the Tequire-

ment of a® A&P license. c

On' July 17, 1962, Bastern sent a lett to the president

of the Eastern chapter of the Flight Engineers sétting

forth the severe economic losses it Was suffering as a result

: ot the strike. After stating that changed circumstances

’ brought eeu by the strike nécessitated modifications in

t ‘Offers previously made st" gontgig to the union, Mastern

-withdrew dts previous offers, ang made modified proposals

‘on the basis of which it would sign an agreement if the

Flight Engineers aceepted them in writing on or before yy

July-18, 1962. The letter also stated that if acceptance ,

were nat received by 6-P.M. an July 18, Eastern avould

offer the same terms and conditions to all of the flight engi-

@eers: those who did not return to work on or before July

24, 1962 and agree to receive pilot-engineer training as

recommended by the Feinsinger Commission would he per- >

. -manently ‘replaced as rapidly'as possible. On Juiy 19, 1962,

Eastern talled 80. jet copilo}s, into immediate training to

complete their qualifications for 2 Flight Mngineer’s Cer-

triicate.. It also. advised all Eastern flight engineers that

anyone reporting to work on or before July 24, 1962 would

not lose his job to any copilot receiving such training.

From July {to Juiy 19,’Eastern and the Flight: Engi. -

| mers met with Undersecretary Wirtz and Professor Fein-

ringer to vensider the crew complement and other unre-

solved issues. On July 23, 1962, at the request of Secretary

- Goldberg, further talks were held. At thei conclugion, Sec-

retary Goldberg proposed a method for Settling the dis

pute. According to the record before me, the ‘Secretary

recommended that the parties agree to arbitrate all unro

. solved economic issues. {Ie did not recommend that the

crew complement issue be submitted to arbitration, Dut

profosed that ‘‘upon receipt of the arbitration award

* of the unresplved economic issues’? the parties ‘will com,

~ plete agreement regarding the orev complement issue with.

oO Rk -wagne

° Ba

’ ee °

in the frame work of the he -retofore.agree ‘d-upon basic prin-

ciples and subject to the coneurrence of the Eastern Air-

lines Pilots.’’ The Secretary stated that he and other gov-

ernmental officials and agegcies would assist the partiqg in

- y_ reaching agreement on the crew complement issue, and that

a 4% ora > lemei ; » ’ "a > ,

ny crew complement issue not re solved is to be finally

settled by such procedures as they shall preseribe."? Fi-

nally, the Secretary recommended immediate cancellation’

of the Flight Engineers’ strike and Wesumption, of opera-

tions by Kastern. The same day, Eastern informed the

> Secretary that it could not accept-the proposal, principally’

on the ground that the solution tothe crew complement

issue Was ‘‘still one that will’ not immediately include or

definitely bind the piiots.”’ Dt) further stated: that after

strikes by the Flight Engineers ovef this very issue, ‘*we

cannot aecept the solution thatamounts to a ‘truck’... ”

with no assurance 6f pilot acquiescence.”

The next day, the union accepted Secretary Goldberg’s t

= recommendation to submit the unresolved economic iseues

f to arbitration. With= regard to the crucial crew comple-

ment issue, the Flight Mngineers préposed that the parties

immediately ‘write afi agreement |... regarding the crew

complement issues Wkhin,the framework of’ the ‘already

agreed-upon b&sic issues.”’ The Flight Engineers offered

to return to. work immediately upen conclusion of such an -

a greement. : ie

o On July 24, 1962, | Secretary (féldberg asked Eastern to” ,

eae recormyler its action. Since then, further meetings have |

been held ey le r the auspices of the’ Secretary of Labor, but

have. not produced, any resolution of the issues of the basic

dispute. : ms

On July 23, 1962, Eastern resumed operations on an | ;

extremely limited basis. The strike has foreed an almost

complete shutdown of Eastern’s operations, causing it to

lose an estimated $1 million a day in revenue. As a result

of the strike, Eastern has been forced to furlough approxi.

mately 17,000 employees, who have suffered a loss of $12

million a month in wages and benefits. The strike lias re.

—.

da f

sulted in a seriou’ reduction of hcgPline, service received

by the 115 communities normagby served by astern, and -

has disrupted the travel qlans of a Jarge portion of the

publie. ie ‘

. ae nt ) |

~ he Railway Labor Act: 45 USAC. 65 151-1638, 181-188

(1958), provides detailed pro@dures for the settlement of

labor disputes arising in [Pastries covered by the Act.

The procedures differ, depending upon whether ‘miner’

or ‘Smagor”’ disputes are invelved, The former involve the

interpretation and application of existing collective bgr-

ee % ae hia a :

gaiggos agreements; the lafter concern the formation of

terms and conditions of employment to be included in a>

new collective bargaining agreement goyerning the relation-

ship. between the parties, See, eg. Elan J. @ E. Ry. ve

Burleu, 395 U.S. 711, 723-24 (1949); Pan American World

Airways, Inc. v. Flight Bug’rs Ass'n, Nos. 27697-0862 Cir.

. July 25, 1962 at 2816. Since the issues in thi axe ammount

toa “major dispiite,” attention need only be given here

to the “Act's procedures for resolving sHeh disagreements.

These have been ably summarized by Judge Bryan in Aimer-

wean Airlines, Tie. M8 Air Line Pilots Ass'n, 169 F. Supp.

777, 784 (S.D.N.Y. WO8): . 2

“Tf either carrier or-eanplowees desire to make any

chenge in the status qito Withtespect to conditions of

employment, ¢ither nner any, existing godectives bar-

gaining agreement or in its absenee, they must vive at.

: . ree . . ; a —~

least thirty dat-"'written notice of an infentied change .

insagreements affecting rates of pay prules, or working

eonditipns’. © 6. - !

“Thereafter it- isthe duty of koth parties undér the

mandate of Section 2 to confer and the Act divects that

the time and place for the beginning of ‘conserence

‘ shall be agreed upon within ten days after the receipt

days provided in the.notice’. (Emphasis supplied.*> 6.

“Tf the conferénees tail either party may invoke the

. s@rviges of the Medition Board which ‘shalt promptly

=° put itself in communicativn with the parties’ and ‘shall

; ° e . > “

7% S z ; : we

of said notice, and said time shall be within the thirty:

‘

10a

use its best efforts, by mediation, to bring them to.

agreement’. If these.efforts are unsuccessful the Board

‘as its final required action’ (except as to the request

for a Presidential Emergency Board) ¢ shall at once

endeavor * * *-to induce the parties to submit theire

controversy to arbitration’. (Emphasis supplied.) § 5,

First. If both parties agree arbitration proceeds under

’ § 7 and the resulting award is final and binding on the

parties. If arbitration is refused, however, the Board

‘shall’ notify the parties thut its mediatory efforts have.

failed and ‘for thirty days thereaftegs unless in the

intervening period the parties agree to arbitration, or

. an emergency board shall be created under Section 10 .

vf this Act, no change shall be made in the rates of pay,

rules or working conditions -or established practices in

effect prior to the time the dispute arose’. (Emphasis

supplied.) § 5, First.

‘*Finally, after being notified by the Mediation Board

that a dispute threatens ‘substantially to interrupt in- -.°.,

terstate commerce to-a degree such as to deprive any —

section of the country of essential transportataon’, the

‘'Presiden? may create a Board which ‘shall investigate

promptly the facts as to the dispute and make a repoft -

thereon to the President within thirty days from the = °

date of its creation’. After the creation of the Board,

and for thirty days after it has reported to the Presi-

dent ‘no change, except by agreement, shall be made by

the parties to the controversy in the conditions out of |

which the dispute arose’. § 10."" ~ bs

It should be noted that at no stage of the proceedings:

under-the Act are the parties compelled to settle the dis-

pute unless beth agree to submit the issues to binding arbi- .

tration. See Elgin, J. & E. Ry. v. Burley, supra, at 722-28.

See generally Comment, Enjoining Strikes and Maintam-

ing the Status Quo in Ratlway Labor Disputes, 60 Colum.

L. Rev. 381, 385 (1960). ‘

‘*For [the settlement of major disputes] ... the stat-

utory scheme retains throyghout the traditional volun-

tary processes.of negotiation, mediation, voluntary ‘ar-,

bitration, and conciliation Every fagility for bringing,

about agreement is provided and pressures for mobi-

lizing public opinion are applied. The parties are re-

quired,to submit to the successite procedures designed

Fad |

‘

lla

to induce agreement. ° 93 First (b). But compulsions

. yo only to insure that those procedures are exhausted :

before resort cay be had to self-help: No authority is

empowered to decide the dispute and no such power is

intended, unless the parties themselves agree to arbi-

tration.’’ ™

* it @

The carrier, on the other ca can effect no changes in

the terms and conditions of employment pertaining to the

dispute until the procedures of the Act are exhausted. Nor

may either party resort to the use of economic weapons, 1.e.,

‘self-help,’ until #ie proceedings provided by the Act for

major disputes are at an end."*

The union confends that the actions ‘af Kastern,’as Ody

lined in its letter to it on July 17, 1962, and as effectuated

on July 24 and thereafter, violafedgvartoug, se tions of the

Act. The union argues (1) Eastern has place a into effect

changes in terms and conditions of employme ut withsut

having first servéd a fotice of intended change as required

by Section 6 and Section 2, Seventh of the Act; (2) Eastern

has —— directly with flight engineers in violation of

Section 2, Fourth and Section 2’ Ninth of the Aet; and (3)

Eastern nn executed agreements with individual fight. en-

ginee rs with the intended and ultimate effect of- coercing

them and ®therwise interfering with the selection of their

bargaMming representative in violation ef Section 2, Third:

and Section 2. Fourth of the Act.

With regard to the first contention, the union claims that

" since “ic € cre complement and A&P license issues were not

raised ji Kastern’s original. **section 6°’ notice: fio uni-

laterai act on theepart of the carrier changmg the status

_quo could be legally instituted because the compulsory me-

diation procedures of the Xet had not been exhausted with"

respect to those issues.” :

In the recent case of Pan American World Airw AES : Ine.

7 - se

“Elgin, J. & EB. Ry Burley, 325 US. 71, 725 (1943).

12 See Butte? A. & Pae. Ry. v. Brotherhood of Locomotive Fire-

men, 268 F.2d 54,58 (9 Cir.), cert. denygd, 361 U.S. 864 (1959) ;

American Aitlines, Inc. a Air Line Pilots Ass'n, 169 F. Supp. 777,

789 (S.D. N.¥® 1958). -

sae Vi * lla a

° cat .

ee 3 » Flight Eng’rs Ass'n, supra, the Court o Appeala.c lis:

% eee iajur ection obtained by Pan American in ihe =

‘ fier. Pan American appare ntly ¢« contended that the str ‘ke

. was illegal e ‘ither because ne + ectYousi notice was served %

by either party with refe renee To @ crew compile ‘ment

: - — problenr and the mediation procedures “of the Act had-pet—

~ beer complied with, or, in the alternative, that Pan Amer-

dean's: *Saece ptanee’ of the recommendations of the Fein.

singer Commission on the crew coniplement issue, some 16

or 17 months after the original *? sec tion G"* notices, const

* tuted a new certion 6°" notice on that issue, which set in

motion the procedures of the Act not theretotore exhausted

prior to the-strike. The Court of Appe fals.-in a 2-1 decision,

rejected the contention that ‘one of the parrties ta the pro.‘

cedures under the Railway Labor Net can, after those pro-

cedures are once exhausted, set them in motion for a secand

: time by the sery ice oh ase efion 6 notices raising new issues."

5h He Par hme rere dit W arlad abe IrWaUs, lucy v. Plight fug'rs Ass’ a,

~ supra at 2820. Further, the logical extension of such a cone

clusion would mean that ‘teach new dispute on which the

parties se ved Mypropriate ‘openers’ awonld set in motion

the machinery of the Railway Labor Act all over again

with respect to a dispute In whieh the procedures ot the |

“Act had already been fully exhansted. Thus the right: of,

. the Union or.the employer to Use the economic pressures of

strike or lockout Ww hich are ter bidder ons during’ a ye riod

when the parties have not fully per formed their duties and

obligations under the Act, ¢ voualel he ng aR; ad indefinitely.” 5

“7 American Airlines, Tne. ». Air Line Pilo Ass'n, supra

at 797.

Therefore. nnuder Pan Awmerrican, injection oft the erew

_ coniple ment and related issubs by Eastern after the ‘*see-

" tion 6°" netices had heen served could not, by starting the

Act's processes all over again, prevent the Flight Engt

, : neers from striking. But. having raised these issues, and

the anion having struck, is Bastern foreclosed, “> the union

contends, from changiyg the teres and conditions of em

loa

ployment! Under te cireamstances of thats ease, LT think

not. This is not a situation in which the employer t raised.

the crew complemeif issue for the first time after the anion

went on strike, where different considerations might) be

involved. Rather, the emplover herp is in the same pe Shion

as the etmplayer avas in Pai bmericen, where no formal

wt weetion fo —Hetiee was _obeT tied but the em foyer **ae-

cepted’ the recommenda t lous of the Peinsinger Commis

‘sion report aud the issues were the subject of .e ‘tended

application of the Act's procedure s. To allow & union but

not an employer ‘self-help’ * in that sc hi a possiblee

}

hut unattractive result, \ bie ho stacks the déck heavily in

favor of one of the parties to a labor dispute after a strike

hats started, H ida hor helieve stich sho result is require al yy

the Act. ; .

8 e o

The crucial question in this context is: have the parties

negotiated with respeet to those fundamental issues, divid

ne them within the context ob tine ‘aden dispuite’’ pro.

ceedings under the Railway Labor et? | find altat they

have, ayd are impasse bas been reach dias to them. While

it is true that the crew cong lemietel and A&P license issues

were not meluded in Kuastern’s original ‘section 67° notice,

there is no doubt that these, issues were {ie erucial ele

ments of the dispute Which divi dead f sarties during he. ?

| >

extdpsive bargaining since Fe bruary 106 } when the Fheht

Engineers actually wernt out anh strike heeause of "these

isstads. Oni the record be@ore ane, it is clear that the Prinary

COU oft this labor dis} ute ah ved thie carrent strike Was the

crew complement problent and its related issues, Although

there may have been a technieal deficiency in the manner

in Which these issues were injected into the dispute, such

technicalities cannot mas® the tact that these issues have

heen a subject of negotiation since F ‘obra: ry P61, and as

to them, the processes of the Act Nave been ext nusted, To:

allow ‘either party Te Hiock resort to ‘tself-helpe. atter the

exhaustion of the Act's procedures by relying on a tee Thnical

omission from the original SS apene is’ of issies tolls dis

— eussed and negotiated would give precedence to form over

(

| m jw i

substance. After protracted negotiation ang mediation on.

these issues, an imipasse was* reached, and at that stage,

it would appear that the purposes of the Act, which at-

tempts ‘“to avoul any interruption to commerce*’ and ‘‘to

provide for the upt and orderly settlement of. all dis.

putes’’ had been fulfilled. They could not have been

implemented further by a Subsequent service of a new

‘*section 6°" notice, even though such service might cure

What may have been a technical omission to comply with

the-formalitie of the Act. Te require compliance with

such formality would) amter—the—tircumstances of. this

ease, only deter the possibilities of settiement. See Inter.

national Air Line Pilots Ass'n vy. Southern Arias, Inc.,

7 4 CCH Lab. Cas. 917,469 at 26.220 (MR Tenn 1962),

appeal docketed, Nas. lous -22, 6 Cir, May Ai; 1962. More.

over, i! may be that suchtforma! technicalities were ful

filled here. From the Flight Engineers’ original proposals

of April 1, i960, it appears that they may have ‘‘opened”’

the crew complement problem themselves.’ If so, the

alleged technical deticieney would disappear from the case.

Finally, it ean be argued that, under the circumstances of

this case, the union waived any technical deficiency of com

“ pliange with the “Aet’s requirements Ygih respect to these

issues White the Act does not. by its terms, specifically

speak of waiver, the doctrine would appear applicable

when justified by. the Pagts See Childers v. Broth: rigod of

RR. Trainmen, 199 F.2d 956, Yoo (Ss Cir, 1951): Tater

national Air Line Pilots Ass'n vy. Southern Arrieays. Inc.

supra, at 26218-19 It would seem that the union’s exten.

“sive participation in negotiation sand mediation proceed

The copy of the union's original proposals attached tet its com

plamht includes, at page 16 L /

‘3. Mediatior agreement on withdrawal of pilot qualitica

tion—-renew without change. eae. ou

, + A and E waiver—renew without change :

“5 Om all straight jet aireraft .on sll flights, on all routes

or route segments a second Flight. Engineer will be assPyned

and carried on as an operating crew member Such Flight

Engineer shal! be subject to all provisions ef ‘this Flight Enygi

neer worktime ayreement{* y

ings during which the crew complement and related issues

were thoroughly discussed constituted a waiver of East-

ern’s failure to serve a ‘see tion 6°" notice on those issues,

sinee the anion knew that no such ‘‘opener’’ had’ been

served by Eastern.

Having decided afirmettive lv the question of whether

Eastern could change conditions and terms of employment,

the issues rem: un of whether, as the unlon.charges, Nasteyn

nonetheless iaprope riy bargained direetly with and coerced

individual engineers.

if an employer and a bargaining representative reach a

deadlock» after eXhausting the proceedure established by

the Act in an attemp+ ee: ettle a ‘*major-dispute,"’ “it is

quite clear that the Aer contemp lates that trrther progress

toward the de ‘termination of the controversy will be » left —

entirely to the imiterplay of economic forees without gov

ernmental intervention. “Thy parties are then free from ai!

compulsion under the Act and mav resort te ‘self-help’. 20."

Pan American Word lirwaus. Iyeoy. Flhant Ena'rs Ass'n.

sépra at 2817-18. Thix mig does not appear to differ from

the ruleunder the Nationa! Labor Relations Act (*“*NLRA’’)

that in labor disputes classified as economic, resort to “self

help’ & permissible when th parties’ good faith bargain

ing reaches an impasse, see NLRB vy Mackay Radio & Tel.

304 US) 333, 345 (1938). The economle pressure te

which-the « emplover or union Mav resort is, of course. not

unlimited, and here the Flight Engineers claim that East

Pern resorted to mnlaavty! pressure‘

On Juir 17. Mr... 1.03 Jarrard, Vice-President for Indus.

trial Relations 4f ’ Eastern, wrote to Mr. Jack Robertson,

president o{the Eastern chapter-of the Flight Engineers

After briefly Sommarizing.the long history of the attempts :

that had heen made to solve the prohiems of “job security,

qualification and representation of flight engineers,’’ he

described the impact of the st tite - losses to Eastern of

over $25 million. temporary unemployment of neariv 18,000

Iba

Mook etic

astern employees, and great inconvenience’ to the public.

Consequently, the letter confgiued, the Strike had altered

the parties’ circumstances, and Eastern was ‘compelled

to take affirmative and positive steps to. resume operation

immediately.”’ Therefore? Hasteri? proposed to begiz im-

mediate transition from four-man to thrg?-man jet créws,

évith the third man to’ have the pilot training advocated -by

the Feinsinger Report. In piaée of the detailed solution to

the crew complement issue. suggested by the Report, East-

ern simply offered to give the necessary pilot training to”

its flight engineprs at its expense in the manner approved

by the Report. Eastern also offered the flight engineers a

10.82° pay inerease, apparently the increase it had. pro-

. * if e

posed during the hearings before the Emergency Board "

and recommended by the Board.’* Eastern retreated from

its apparent past willingness to grant both a lintited rétro-

active pay incresse and a ffrospective increase, effective .

on April 1, 1962."" Eastern further stated that it would be

available to discuss its offer with the Flight Engineers for

the balanee. of July 17 ahd July 18,7 but that if the Flight

Engineers rejected the offer, Eastern ‘*{would] offer the

same terms and conditions to*all of the flight engineers

_individually.’* The-effer was subject to‘the condition that

only flight enginéers who returned-to work on or before

July 24 would be given the appropriate pilot training at

Eastern’s experse. Strikers who did not return by that

date would, ‘‘If te-employed by the Company, be restricted

to service on propeller-driven aircraft ‘and [would] not be

given the training contemplated by the Feinsinger.Report.”’

Flicht engineers who did not return to work ‘‘{ would] be

permanently replaced as rapidly as posstble.”’ |

Thereafter, Eastern sent to each striking flight engineer

a letter, dated July 18, signed by Mr. Maleolm MacIntyre.

“17S. Emergeney Board No. 144, Report to the President at 15

{1962;. ; x

15 Thid. 7

16 Td. at 21 °

IT Diseussions were held on July 17, 18 and 19 hy the parties

with the aid of Undersecretary of Labor Wirtz and Professor

Feinsinger. Ws

‘

”~

’

(

| . iva ; ;

President of Nastérn. Annexed to the letter was Mr. Jar

rard’s lptter of the previpus day to Mr. Robertson. Mr.

Maclntyre reiterated that because ot the impasse in neygo-

tiations and the great losses sutfered by Kasiern because

of the strike, Bastern had ts resume operations. ‘There.

fore, he stated, effective in nmediately, de ‘terms and con.

ditions set fort) Ou the alt tached letter «at July 17, 1962

shail be applicable to ali Hight engineers Por betsy

In addition to instructing the strikers as to how and when

any of them who wished to return to work eould inform

.Kastern of their decision, Mr. Macintyre stated that any.

engineer whe did not elect to take jat pilot training would

be restricted, to propeller alreraft, and added, ‘Those who

do not report by July 23th may be - placed” agd any who

are reemployed thereafter will be restricted to propellér’

airer att. * On July 19, the strikers were informed by letter

Phat to resame eoperahans as quiekly as possible, astern

+ vas ealling 80 copilots jnto training as flight engineers.

The copilots would: be used as the third man*in Jet crews

to the extent that Quch places were not filled by flight wif

ne@rs who reported to work by Jaty 24. The letter con

cluded that ‘thes» copilot. will not fake flight: engineer ,

jobs away from any pr esent flight engineer who so reports.”’

As of July 24, 1962, 52 flight engineers dad accepted the.

offer of July 1s, end Teeeiyed priority for the pilet-engi

necr’s position in fe three-man crew. The pregram of

training 80 aa as flicht engineers was, ‘as of the date

of the hearins, well underway, and the cost of thit program

is estimated to be approcimdtely $341,009. *

The wnipn argues that Eastern hag attemptpd $0 bargain”

“

individually with flight ongineers in violation of Section 2..

Fourth and Section 2, Ninth of the “Act, which require em-

plovers to Sargain only with their employees’ authorized

representatives, and has cooreed flight engineers in viota-

tion of Section 2, Third and: Seetion 2, Fourth of the Act.

The principal conduct of Easterr’ that might constitute

individual bargaining consists of the company ‘galetters of .

July 18 and July 19 to the- strikers, which, according to Phe

. °

2 18a

4 ww t .

record before me, are the only communications sent directly

to-them bythe company. Eastern claims, and there is nuth-

‘ing in the reéord to the contrary, that it has negotiated

only with the union and never with individual engineers.

Accordingly, the Blight Engineers’ entere argumett on

individual targaining stands or falls primarily on? Kast-

ern’s two letters to the strikers.

Eastern’s letters both withdrew all previous offers to

the strikers, and stated the terms*upon which they could

return to work. It.does not appear that this conduct vio-

lated the Act. The terms relating to the crew complement

issue upon which Eastern proposed to take back the

strikers ¢ them jess job pretection than Eastern’s pre-

vious ‘The cases under the NL RA that suggest a

measurgyo “hastern’ s right to. vary its offer indicate that

Eastern’s abandonment of some prior concessions under

the circumstances of this case was not unlawful. See Great

Falls Employers’ Council, ine., 123° N.L.R.B. 974, 982

(1959), enforce ment de nied on other grounds . 207 KF. 2d 7i2

(9 Cir. 1960) (**Respondents bargained in good faith until

an impasse developed on April 12, 1957, when the Jmen

rejected Respondents” last amende d offer and, onethe foel-

lowing day, stguck Buttrey, one. member of the malti-

employer unit. Thereafter, Respondents were relieved of

- any dnty,they may have been under to adhere-to previously

made bargaining concessions and were free te withdraw,

as they did on April 15, 1957, their rejec ‘ted ‘fine] _pro-

posal’ and te renounce the terms Of the old, expired con-

tract which had been continned in effect by mutual consent

of both parties thereto.’')" It is clear that. Eastern's *

modification of its position neither created the deadlock in”

,the pa.ties’ negotiations ner precipitated the strike. East-

,eetn did not depart from its last. pre-s strike’ offer until the

strike was 25 davs old. The cases decided under the NLRA

*% Cf NERR v. Hart Cotton Mills, Inc. 199 F.2d 944 (4 Cir

1951) (withdrawakh df concession not evedence of ow faigh

Stoner Rubber Co.. 123 N.L.R.B. 1444, 1448 (1959, wering of

wage offer not evidence of bad faith). Compare NILRB v National

Shoes,. Inc, 208 F. 2a 688, 692 (2 Cir. 1953

. ® ?

| Duty ty Bara

1423-24 (195

tena Nk "198

and the \apparent econemic justification for Eastern’s

actyous and absence of bad faith on its part compel the

coficlusion that basteri’s withdrawal of its’ last offer,,.

inked with its new proposal, Was not resort.to unlawful

+ self-help.” ee

Norgdo I think ‘unlawful Eastern's statement in its

letters of the terms ol which it invited the strikers to return

to work. Initially cpmumunicated to the union on July 17,

the new off€r of July 1s, when ‘mailed to the strikers,

amounted to no more than a unilateral statemen of the

terms on Which the strikers could. return to work if they.

wished. ‘Plainly, ‘tbargaining’* with individuals was

neither contemplated nor ent hts is ho evidence

that any resulted. Parenthetically, it a be noted

that the offer was in no way more advartageous to the

flight engineers than Eastern’s previous offers. Thus, the

new offer was not the type of uniktteral employer action

taken with intent to weaken a pion which, if taken in an

economic dispute subject to the NLRA, would be deemed a

violation of the duty te*argain. in rood faith. See May

Dept. Stores Inc A. NLRB, 326 U.S. 376 (1945); Cox, The

}, and pases ¢ ited therem. / <

Finally Avas Eastern entitled to notify the strikers in its

letters'that if theyvedid not retyrn by a specified date they

would be re places das r 7 idiv as possi e, and that copiiots

would be trained te replace them: ayd did Eastern engage

in permissible “Slf-help’’ when it began training the re-

placements? Once again, the precedents under the NLRA

spgeest solutions under*fhe Railway Labor Act. The un-

fortunate impasse situation is the same, regardless of. the

statute involved. International Air Line Pilots ‘Ass’ V.

Southern Airwaus. Inc.. supra: cf. American Airlines, Inc.

Air Line Pilots Assn. Supra at 98. = economie disputes

under the NLRA, the empl: raw whe has bargained in good

faith may, when an impas gos Te near and a strike occurs,

sig permanent replace anynts for striking employees. NLRB

> Mackau Rrdi ‘of Tel on _ supra, and cases cited imme-

diately delow. Furthe*more, it rfiy individually inform

in in Good Faith, 71 Hark. L. Rev. 1401,.

“es

* 4

”™ bo

the striking employees sat they: must either return to

work on the basis of its last offer or face the threat of

replacement. Robonson Freight Lines, 114 N.L.R.B. 1093

(1989), enforcement granted, 25) F.2d 639 (6 Cir. 1958) :

Téras €'0., 93 N.L.BB.21358 (1951), set astde on other

grounds, 198 F.2d 540 (9 Cir. 1952); Kansas Milling Covv.

VERB, 180° F.2d 418 (10 Cir, 1450). Accordingly, L eon-

¢Clude that Eastern, under the -cireumstances’in which it

found itself, could hire and train copilots to replace the

Bs Kastern’s letters informing the strikers of its

intenfions did not exceed the boundaries of lawful ‘‘self-

help.’’*° 1 find that on the evidence before me Eastern has

not bargained directly with individual tlight engineers, nor

‘has it executed agreements with them with the intended

_and ultimate effec

eof cgercing them and otherwise inter-

ection of their bargaining represenatives.

mats . #."

- also argued that.the union has failed to ¢om-

fering with the

' Bastern h:

denied, 346 ULS..818 (1953), or that a failure to return, to work

by a specified date would constitute termination, seé NLRB v.

Beaver Meadow Greamery 215 Fo2d 247 (3 Cir. 1954) (alternative

holding). Regardless of the distinetions, substantive or semantic,

upon which these cases“may turn, see Shopmen’s Toeal 774 vy.

NLRB, 219 F.2d 874 (6 Cir.), cert. denied, 350 U.S. 835 (1955),

‘no such problems are presented by .Eastern’s Jetters,

‘ 2°'The cases cited by the union are not to the contrary. They

involved. .emplovers who dealt in the first instance with inaividual

employees rather than their’ representatives, Medo Photo Supply

\Corpsv. NLRB, 321 1S. 678 (1944); Order of R.R. Telegraphers

®\ Ry. Express Agenev; $21 U.S. 342 (1944), ave employer who

rekused te bargain collectively Wk K a newly certified representative

becduse of the existence of contracts previously made with individ-

ual employees, J. [. Case Co. vo NLRB, 321 U.S. 332 (1944), an

emploxer whe by organizing a company union att»mpted to impede

its emplovees’ exercise of theif rights, to choose a bargaining repre-

sentative, Virginia ‘Ry. v. Svstem Federation, 300 VéS. 515 (1937),

and an employer who unilaterally attempted to/raise its employees’

wages after refusing to bargain with their representative, May

Dept. Stores Co. v. NLRB, 326 0.9% 376 (194%). These eases are,

clearly inapposite to the pyoblem p esented here. ’

\ 7 2

\ gf

Se ae Fk

Z2la_

: 7. sae Te

» LOS (108), and therefore the remedy of a® injunction is WO

unavailable to it. ‘hat Section provides, inter alia, that

ng injunction should be granted to a complainant ‘who has

failed to makeevory reasonable effort to settle such dispute

Bither by negotiation or with the aid of any available gov-

ernmental maclrinery: of mediation or voluntary arbitra-

tion.’* Bastgrn contends that. the union’s repeated ‘past

‘refusals, before it went on strike, to submit to mediation or us

arbitration at the exhortation of various high ‘yovernment

Officials is fatal.to its eause.*’ See Brotherhood of RR.

Tratigmen v"Toleda P. dW. RR, 321 US. 50 (1944). How-

ever, on the view'of the case already taken, it is nof neces-

sary to explore this argument. . :

On the record before nie made by the ‘parties on this

motion for a prelintinary injunction, | dovnot feel that the

Flight Engineers have shown by ‘‘clear and convincing?”

facts, see American Airlines, Inc. v. Air Line Pilots Ass'n,

supra at 793, that Eastern’s actions have violated their

legal rights, or thet they have a reasonable probability of

success in final hearing on these points. Id. at 795. Aecord-

inghy, under alt the circumstances, ihe motion fpr prelimi.

“ nary injunction should be denied. 2

. The foregoing shall constitute findings of fact &nd con-

clusions of law in aecordance with Fed. R. Civ. P. 52(a),

28 U.S.C.

Settle order on notice. | aw mw, PP ae :

. eAugust 10, 1962

3 Witrrep FEmneerc ”

U. &. D. J.

o | Fi #

m2)

?1 See text at p. 8, supra. te le ea »

22a

APPENDIX C

. . . a . §

Pertinent provisigns of the Railway ‘Labor Act referred to in the

petition are as follows: ‘ = ‘

‘ i e

Section 2, Seventh;

. ‘Seyenth. No carrier, its officers, or agents shall change *he

a class as embodied in agreements-except in the manner pre-

seribed in such agreements or in section 6 of tht Act.”’

” e .

‘ Nectwn 35: . . Mle

See, 5: First. The parties, or either party, to a dispute be-

tween an elaplovee or group of employees and a carrier may

invoke the Services of the Mediation “Board in any of the

. following cases: _ 7 - F

‘*(a) A dispute concerning chffnges in rates of pay, rules,

or worlgps conditions not adjusted by the parties in conference

“(b) May other dispute not referable to the National Railroad

Adjustment Board and not adjustest in conference between the

parties or where conferences are refused. +

‘The Mediation Board may protfer its services in case any

laber emergency is found by it to exist at any time.

‘In either event the said Board shall promptly put itself in

communication with the parties to’such controversy, and shal!

use its best efforts, by mediation, to bring them to agreement.

If such efforts to Pring about an amicable settlement through

mediation shalt unsuccesstul, the sai

endeavor as its final required action (¢

paragraph third of this section and in s

to induce the parties to submit fheir co

tion. in accordance with*t' > provisions o

“If arbitration at the request of the Boarc

one or both parties, the Board shall at once

in writing that its mediatory efforte have faWed and for thirty

days thereafter, unless in the interveninf period the parties

agree to arbitration or an emergency, board shall be created

under section 10 of this Act, no change shall be made in the

cepg as provided in

wroversy to arbitra-

this Act.

wtify both parties

rates of ay, rules, or working conditions or establish practices

im-effeet prior to the tume the dispute arose

Section 6: S te Ope

‘See. 6. Carriers and representatives of the employees. shall

give at least thirty days” written notice of an intended, change

“« ° im agreements affecting rates of pay, miles, or working condi-

tions, and the tune aie! place for the beginning of conference

‘ between the representatives of the parties interest@d 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 be®e given, or conferences are

being held with reference thereto, or the services of the

. : ‘

rates of pay, rules, or working conditions of its employees, as

Board shall at once,

‘tidh 10 of this Act)’

shall be refused by .

& *.

ethom service, the Mediati

troversv in the

Mech ai Lou Lear have toate’

RBowrd bas proffered its se

sey cords tions shatll met

eon Poverny haSMrecny tinadl

HL Meret iested bv either

party, or said

rmoces, rates of pay,

4 rules, or work.

be altered by the carrier until the

deted upon as required Maeectign

fhis Aet. bs the Mediation Board. untess a period of ten

days has elapsed after tert ati oof conferences without re

dilestelop or prot? éheoserviees of the Mediation Board

‘See TO) ]f a. dispute

he sot adyusted, under the

shimild, in the J jpelen ent a

stantially to mnterriupt

te deprive aN section of

Who tay thereupon. in hi

tieate ane repeert respect

het weeh a

terstute Prue’ pacet. Va

ing such dispute. Suet

Chipos@R of stich nugiher

sepm alostrat ie Provided?

hall be poemmimridy or oth

ref empl psa idl earn}

earrier and oats emplovees

forevoine provistons of this Net and

tothe Mtedtiation Board. threaten stib

i Vadoadecree such as

thi aed o eo sential Transporta

Board shall notify the President,

s aliseretion. ereate a board te inves

| board shall be

as ty the President hia

», That no tuember appointed

‘

of prerseni

fiecm@aue

Wise ciiterestedd i any OP ni Zit log:

er The cetupensation of the mens

tied bys ‘the President Such fy

board sStadil be greated separately in each mstanece and it shall

hvestioute premstiv the facts as te the dispute and niake a

repert theren: to the DPresplent wathin thanty days from the

date gt @s cheation.

Ti ere os bie redoy geagth wized tis beg Ipropriated stich SHINES Gis

reas be nefessary for the e

erestra dea tyscgbived anal the tie

perses qethally neared

hd hh ard All

raid on the presentation

proved by the ehairman

“After the création of sie

stich bored bas ria its

except by nureement. st

» *

e =

“$ .

’

> =

. ~~ ®

“.

¢ a

’

e* e

expencdiar

all beomacde

eouaditians at

senses Of stele board, ineluding the

veska ry raveling expenses and. ex

for stibsistence, of the members of wy

esoof the bes 1 shall be allowed and ~

af itemizedBvouchers therefor a

hebowrd, amd for thirty davs after

rfport te the Presidept. mo change,

by the partic s © the con

11% ‘ t WH lk i the hisyy ite arose

\ 2+

a, $5,

, ‘ a

a e* 4 -

. g

‘ “ . Py zi «@

. . » :

. .

“4

. > ;

ie . 7 e

2 .

. ‘ “ -* 3

‘ .

. .

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.