Petition for Writ of Certiorari — Ruby v. American Airlines, Inc.

Supreme Court brief1964

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Suprem Court of the United States = |

October Term, 1963 . ctl mst — ad

No 60Y

‘Charues H. Resy. as resident ‘of the Ar Lixg Pots

Association, INTERNATIONAL and Am Line Pruors Associ-

ATION, ENTERNATIONAL, aii Unincorporated association,

Petitioners,

. agawmst ,

‘ _ AMERICAN ATRLINES,: LNc.,

: Respondent,

gee ea :

NicHonas 4. 0: CoXNeun. Jn, individually and as Chairman

of the Master Executive Council of the — in the

service'of AMERICAN ATRL ANES, INc.; and the Negotiating

( ommmuttce of said pilots, consisting of Ricrarp, Lyons,

Roserr T. Guba, Josepn Garvey, Pact ATKINS and NicHo-

Las. J. O'CONNELL, JR, ex officio,

ge er eae Additional Respondents,

: and

Joserpn VM AN NIN ¥ ‘as P resident of the “A wericaNn AIRLINES

Ciaprern, Liga E\NGincers* INTERNATIONAL ASSOCIATION,

AFL-C1O, and, Americas Amutves Chaprer, Fuicet Ew-

GIFERRS’ ENTERNATIONAL Association, AFL-CIO, an unin

corporated association,

Te ae Interv enors.

yeaa

PETITION FOR A WRIT-OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

SAMUEL JJ. GBubx a

Attorney tor Pe fitioner,

Office and P. O. Address,

605 Third.Avenue, — --

rH New York, New York.

Hexry. WErss,- :

Iieneerr A. Levy, .

of ¢ ‘ounsel,

' . Frees PAGE 2-

Qprstons Betow ..... Aas PRE RTE ea ye 2

. s* . . ‘ °

P ° eet es Aaya , — a , A »)

SUPIBEMAON i Pe pete ceca eee’ ee on oks a

QQuESTIONS PRESENTED !. 400200050520 865 Pe Nid 2

STaTuTE INVOLVED . 2. .'. lee ee ene came a VAG EL 3

Tne Imrortaxe: or gHk Issves PRESENTED AND THE. ©

N¥cessrey F iee ROVE Siac ccuweee ces Soe a re ee ye 4

STATEMENT ‘or THE 3h eee Se Gs era wa ae 3D

I. Contliet ie te the Courts are the National

- Mediation |

sistent position. of the Mourd.: ..........5 05-455 2,

ard on jurisdiction, and the incon-

I. ALPA’s status as Reeognited Gallective Bar 2

gaining Representative of Pilots. ......°. Ee “B

Ill. The development ofa disagreeme at “within -

ALP. Tees at A Ce we We ie ae ee 13 ?

IV. The funetion and aan lority of ‘the MEC and

' Negotiating Committee within ALPA’s structure lo

Ve American's re fusal to dval with ALPA, and its. ,

ar)

_— dealings with a at group while ALPA con.

i tinued to ieeodet ike representative status . 00... 7

V4. The absence of eviderive that the pilots supported.

<_ O'Connell's group... +--+ ce ies mares ey oP 1

v Il. Negotiation ofan agreement with a bargaining

representative to be fornied and ide ntitied: later (22

Reasons FoR Gris NTING ie

I. -TheC ourt below erre i in finding that the Federal -

"s Courts lack jurisdiction to deal with the issies

raised by the complaint. .... 0.0.0.4. 04.555: e. 24

: ‘ \

We Ee : e 4 A . PAGE

1 Be fajling tw Mteriuaiie thas the respotident. vie . ie

lated: positive “mandates sor fhe Railivay Labor

Net anid that an ethective: retyody should be pron

Viebeyt [ei “eli Vbolations, the Courts below de 0 0 Pe

patitead Pro eid 'Tat principles of daw. and’

have seta precediat tor the violation of sts itutory ¥

“rights of piiplovees wily un WEEN SS ooo os vw vk 3

CRAIN onl hn ee mene cn ne yg eee eS gee i

2 ad -. omy

APPENDIXe , : , :

Opinion of fiye U.S. Court of Appeals ts SR a AS a la :

Judgment Sought to Be Reviewed Cake th a peak aT Sues neeee ; Ba f

| = e 4

Opinions oft the Distiiet Court ..- in ny Cae eK ogee Dia

k : \ . . . =) 2 5 +

Sudement of the ‘District OM oS eek Cac _-$oa :

t . . 2

Opinion, Pinding-, Coneltsion~and Order in Com-

" panloi arinete ses he ccc ak ha taka te ae abate Oat

Memorarlam, “Order avd Amended Order itl es ‘ a

pallor Action. etawae ae mate vas ie eae rere I2a.

Text. oft ‘Statutes and. Regul: ation Rel ferre ed to ~

Haley Labor Act che thse ees . Te Seer naa ' 97a -. a

* Rules and “Re enlationn aot NG ational: + Mediation

¢ Board ee ese ee ke a eos Sree . 99a

Resolution oF? Minerican Airlines MEC arctan -3- 102a eee

% |

Allied ’~ Petition to Nationai Mediation Board ..2... . 108

Se er _

= ae: ‘ ae A

- nm P 7

Table of. oe .

\ PAGE

; . “\ E

(" ASES ; _ \ 3

American Airlines Vv. sALP A. 169 E, supp. we (S.D."

NW. W. 1956). ....: Mees le PO rs Tee. Oe, 33°.

- Nssociation for the Be nelif of Non-( nite Kiiploy --

ees y. SP gesg al Mediation Board, D. Cop. ce. Ci.

No. 99-63 (May 8, SRS). 3, 2 oka> ewer ea eee 0)

Dix trict 00, U nited Mine Worker sy. NI RB. 234 F. ad

565 (4th Cir. 1956) Sh eee wcwna ee Se 70)

Elastic Stop-Nui Corp. ¥. NL. RB, 142 b. 2d 371 (sth, ye

7 Gir, 1944) f..----- ieee Rigs sse7 8 of"

Ferro- -Allovs Corpt v. ML, ARB, abe x. “id 646 (sth Civ fe .

104), ee PET eee eT PTR CEN Pesos ce 45

~ E ngineers lute national Association v. Bas t-

ry ALT. Lines Ine. oll & 2d T4590. Jbel y. (1963) 5, 44

I eB Bros. Co.v: NL ARB, - 21.ULS. 72 nr: aot 66

Garment Worker; v. NL iB. 306 U.S S. TH (1961) 27, 25, ae i

ae \ D8, 62, 63, 71

General ¢ ommittic ‘. M- Ix- T Ry. Po. ai} =: S. 323

=) (ey ear ere Ae Aes eons fis 44

Gene ral ¢ ‘ommitt: “ ¥, Southe ry Ar itie (‘6., B20.

es BS (IMB) 2. cckees in Gees 44

LAM v. NLRBOSILU, yt (1980y 2). 6... \ 47, 59, 65

Loéat 4x v: NL RL. FF Fr. 2a 168 CD), e Cir. . A

NLRB vv. C lark Bros, Co. Inc. . 163 F:: 2d 5 abe (2 an Ci,

"": 4946) ....- Pa MOS POETS TL hes eel - 47.

NL RB . Engle thorn & Sons, 1s MF. 2d 3 wi (od (i iV.

- 18 Meee hte Sartor patted netvibes t - hy

NLRB v idianapolis Newspaper Ine... 210 F, 2d WO]

(ith Cir. 1954) ...-- Fp ere ae OF, 69; 70

NLEB v. Kearney & Trecker Corp.. 237 F. 2d 431

F (7 thr ( ‘ir. 1956) Re er i eee ere tf ar

é En ps v. Link Be it ice. 2.5 ui. s. ari 11951)

So. al .-

> bs a / © 2 an ,

£ . Pe

» ; ae ;

: : tat. ‘ PAGI

“Chore (t ‘ont ‘d): hi fg ay nie

NLRB. Knicker hoo cer Pitas tic, is F.2d fa (Mth

C Lee PT ) ee ea, Sige a Sy cee ee era 47

NL ihe. v. Marcus Truce king C'o., ONG BF. 2d O83,598 (2d

NERB veo Supe gs bb ireproot Door & Sa- m Co., 289 F..

G4, Go:

Te + Bie ta Seg mean eae hea eye Re oe ty

NG. RB Y, North El ei ric ('o., 25 F’. 24 137, (Gti Cir.

101) EES OE ARE PERCE LE CLS. rT Mews #0 ol

AB Pennsylvania Gre chound: Lines, 303 U. Ss. <a

fr. 261, Sor fh | TRAE eee ceeaaney es 4945. 62

NI. RB. Some rset Sh 20K ( On 1 PF. 2¢ 681 (1s +e ir. :

ER siege ie keg cata 9:4 npeey ee 47

NLRB v. Stewart, 206 2 dS (; sth € ic, 20607 .. *. 47

NLRB v. Stowe Spinning ¢ O., fin » FL 2d 60) cemewene *

e 2d be 725 (4a-Cir. 961) ue epee Spat -y «34, 70, 71

NiRB , Swift & Co., 294 F. 2d 285 (3rd Cir. 1961), on’

N: coon Lieorice Co. v. XI RR. 309 TL S.350 (1940) 63

Northwest Airlines v. ALPA, 185 F. Supp, 77 (DL ¢.

Mip.i, 1960) ..... ree. LereisS Sirens are <.

Grder of Railway Conductors v. National’ Mediation ~

+ Board, 141 F.2d 366, 365 (D. C7 Cir. 1944) 202. 21, 40

Ralroad Trainmen, v. Chicago’River & 1. Re. 353 -

U.S..30 (1954) %...: a. atin Disappear? 33

Raiiroad seer pala Penn-vivania RR, 224 F. 2d

Ba (Grd Ce 8005) oc ot eg eens , 33

‘St. Louis Lider T ane Co. ¥. NLRB, 291 F.

_ 2d 700-4 th Cir. 8 See eae Spe arsine ea een eae 67. 69

Steele ¥. Louisvi! le and Nashville RailroM, 3 i.

12 I se, as eee are ie fairer 3Z

Switchtmeni’ ~ Union of North America v. "National

‘Mediation Beard, 3 20S. 297 (1943) SEeORR SS 2s

1, Xuix 3 N. QO. RR. Vv. Brothe rived of Railrjad lerks, —

SR | a eae ae Senne er ~ 32

pigs: © hited Mine Worke es Vv. NLRB. 251. S. , G2, 72 note

Cases (Cont'd &:

Punstall v. Trotherhoad of Firemen, $25 U.S. 210 0 -

(B44) 2%... RPG Eee hers | ae go 1. B8

ie es. He Res Ce ina strict tai Re eee TO:

Virginian. Jenilway €o. v. System Pederation = 40, BOF

“isbn S.9515 (1987 o Jv yee. dt. 82; 33, 34, 36, 38, 47

Ww KE S Chi: naprte r. Flight Engines Ps Interattional Cee

ceiation vy. National Mediation Board, $14 as .

ip... Cm. Novembwtr 1h, 1962). -¢0s%. Ui .

. ; , fp e e i ; 2 4 P P ?

ADMINISTRATIVE DECISIONS =. ; sits

er ; a - ae

“Air Master Corp. 142 NERB No. 27" Aprit 2 2 » 1963) o2< id ,

Borg- Warner Corp. Case No. 8- RE@4 (A \dminis-

trative Decis sion af NI: RBI 195.) nak 3

Bilis & W atts P roduets, Lue, ‘tse No. ORE 410i ¢ rey

oé

ministrative Deceien of XL Bh oT ares Sa ee

Towa Beef Pac ‘kere, Ine. 144, NL RB No. 64 (Sept. Iv,

pe NEB bona a Sratecpanes ene beg ee neg es oa 46, 47

Matter of Brotherhood - wf Railway and Steamship

Clerks (Allegheny Airline -. Ane. ) NMB Case No.

. R347 0 (1962) ae SES Fame eka eile Ming ioe re ee tage

Matter of Representation Of Eniployees of Pan.

Ameriean Airways, Ine... 1. Determinations” of

Craft or Class 84,86 5 9. ge Tee ene 34,35, 47

Mays Dept. Stores d boa F Amous Barr Co... 61 NL KB ao,

76 (WMS aie syd eae Bey tele ae 31“

Midwest. Piping and Supply | Co, 63 Si BP Lio

(1S) Arete et. Caters aries tha! AK, 40 SR56, 79, 71

XMBS ase Nog Re136 19355.

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- Judicial ( soy) of the. v nited States, 28 U. s €, os

=) 2s U. S 1254(1) ° eter eae “seo peceevsesecee 4

gay. S. os a1 =o Se ee hag tocpeerees 5.

98 -U. S. ©. §MSST odes ee cerescufacssectnecs ¥, 32

‘Railway Labor Act, 45.0. Ss. C. § 11/188, het

‘ 152, Third . revered be asa 3 fer = , 24,°41

§ b52, ia Bea PR ae te ee ie 4 5 Py 41,48

Ee ON Pe one Nace et y 2, 38,39, 40, 440

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National Labor Retations Act

petey LS eer Sere weoe oper es 48

Rules ‘of the N National Mediatif~n Board , presi BIDe 3

ig Le oe ee

(PINS od tung ence te, 38

Se sheer and: Davison Log

NMB Case No. R-385 (1988) .

* Novak Logging ( ‘o., LY NLR

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Sixteenth ‘Annual deport at ‘the National Mediat Lett

Bourd 155-5 (1951) :.... 600-325 --+:- Pate:

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President’s Commission on the. Airlines Controver=\ 1,

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Supreme Court of the nited States

. Oétober _ 1963 .

\ ried m ait ‘ >

Co SR No.

Cnarues H. Rvupy, as President of the Am Line Pivots

ASSOCIATION, IvTers ATIONAL and Air Link Piwors Associ-

ATION, INTERNATIONAL, al. unincorporated association, .

Petitioners,

against

* AMERICAN AIRLINES, INC., .

es, > . Respondent,

and . -

ee J..0°C ‘ONNELL, AN individually and as Chairman

of the Master Executive Council’ of the pilots in the. -

service of AmEricaN Arruines, Iwc., and the Negotiating

Committee of said pilots, consisting of Ricnary Lyons,

" Ropert T. Guna, JosepH Garvey, Pau, ATKrNs and NicHo-

_ Las J. O'CONNELL, JK, ex officio,

and-

Josepn V. Mannina, as President of the A MERIC we ATRL INES

Criapter, Furcnt Enorneers’ INTERNATIONAL ASSOCIATION,

AFL-CIO, and AMerican Arriines (Hapter, Fiicnt Ey-

GINEERS’ [N'TERNATIONAL ASSOCIATION, AFL-C FO, an wnit-

corporated association, oo

; a es - Intervenors.

e “ Vv a.*

: -

PETITION FOR A WRIT OF CERTIORARI TO THE.

_ UNITED STATES COURT OF APPEALS FOR THE

SECOND aaa |

~ Charles H. Ruby, as President of the Air Line Pilots

Association, International and Air Line Pilots Association

‘International, an unincorporated association, respectfully

‘Additional Respondents, |

pray that a writ of certiorari issue te review the decree of”

the United States Gourt of. Appeals for the Second Cireuit,

‘entered in' the above entitled ease on September 16, 196:

Opinions Below

The opinion of the United States Ceurt of Appeals tor

. the Seeond Cireuit dated September 16, 1963 is not vet

(officially reported and appears unoflieially at 48 CCH Lab.

Cas. Par. ISAg6. Tt ix set forth iv full at Appendix ¢ 2Ja-TSa.

The opinions of the United States. District Court for the

Souther: Distriet of New York denvifiig the petitioners’ me-

tion for a preliminary injunction and granting summary

judgment to the respondents dismissing the complaint for

lack of jurisdiction over the subjeet matter are not yet offi

cially reported and appear unoflicially at 48 CCH Lab. Cas.

Par. 18.438 "arid Par. 18439. These opinions are set forth

in full a, Appendix 2 hei S4a.

- Jurisdiction

“The deeres sought to be reviewed herein was dated and

entered in’ the United States Court ef Appeals for the

Second Cirenit on September 16, 165, and is feund at

Appendix 19a 0a. The Jurisdiction of ‘this Court te re Vaeg)

lial deeren Dy writ of certiorari is ingeked under 28 CLs

S941). * S250 a eae

7 Questions Presented

I, Is the Federal Court without jurisdiction to protect

employees” rights under Seetion 2 Third and Fourth of

the Railway Labor Act against violations consisting of

the emplover’s refusal to. bargain With the Ineumbent wien,

unlawful interference, assistancetand coercion in the selec

“~

tion of a representative, and has the National Mediation

Board exclusive jurisdiction over ‘such matters, where the

Federal Court action, commeéheed prior to any. proceeding

in the National Mediation Board, sought to require the

employer to bargain with the incumbent at a tim when,

there was no substantial representation, question, to enjoin

the employer from dealing w ith an unauthorized employee -

committee and from dealing with a rival organization later

Yormed by such Committee at a time when a representation

dispute existed and an election proceeding was pending

before the Board, and notwithstanding that the only remedy ”

‘the Board ean’ provide is to- oruler or W ithhold the conduct

of an election?

II. Does an employer violate Seetions 2, Third and 2,

Fonrth of the Railway Labor Aet by refusing io continue

ngzotiations prey ipusly commenced with the incumbent, by

‘gotiating imstead with a committee of its indrvidual

amployees Whe thereafter use the agreement produced by

uch negouy tions to develop employee support for a rival

ory on thereafter ere: ited by them, and by econeluding

‘with that rival the agreement so negotiated: while a pro

ceeding to resolve the representation ‘question, ty whieh

both organizations are parties, is pending and unre ebived

before the National Mediation Board!

. Statute Involved

“The statute involvéd is the Railway Labor. Act, -40

U. Se @. 66.151-188, and particularly $< 2 Third, : Fortrth

and’'2 Ninth of the Railway Labor Aet, 45°U. S C. & 152

Third, 152 Fourth and 152 Ninth. The full text of these

provisiois is set forth at Appendix 97a-99a.

The Importance of ‘the Issues Presented and the

Necessity for Review

This action comes before the tier follawing deter-

J Mminations in the Court Weew?in a companion aetion and by:

the National Mediation Board which, taken together, have.

established that

1. There is no remedy available for interference,

Fcoercion and assistance which violates the’ Railway

Labor Act unless that unlawful eonduct oceurs

during the actual nolding of a representation elec.

tion, and *

. ‘

2. No duty is imposed by the Railway Labor Act

upowsyn emplover (a) to deal only with the frui

representative of his emplovees, and (b) te -remain

absolutely neutral when rival representation claims

prescit a substantial representation dispute affeet-

“tne his employees, or, ft such duty Is imposed, It is,

snot judicially enforceable.

There is manifest eorifliet, ard confusion as among the

oderal courts concerning “Federal jurisdiction and @he

funetion of the National Mediation Board where duter-

ference occurs prior té the actual conduct “of a representas,

tion election mider Section 2. Ninth. There ay startlifig

inconsistency in. the Board's concept of ts own proper fune

tion and Jurisdiction within the pe rime ter of this cnse and

‘ts We ‘lJ awhen viewed 3 against other comparable proceedings.

The total effeet is to leave the ball in mid field. Ty this case

the Petitioner has been assured, by the National Mediation

Board and the Court respectively that the other gas ample

“power and jurisdiction to deal with the violations. The,

Vindicataon of representation rights of the Petitioner and

other employee groups should not be left to such anibiguons,

contradictory ‘and. ineffectual assurances, '

or:

The seéond above stated. proposition runs counter to

the established structure prohibiting an employer from ex-

tending preferred treatment to one of two rival- represent-

mg groups. . ; | etic \

| Statement of the Case |

1. Conflict heewien the Courts and the National, Mediation

Board on jurisdiction, and the inconsistent position of |

‘the Board. ; :

The issues raised by the complaint in ‘this action relate

to interference, assistance and coercion practiced in’ ad-

vance of the holding-cf a represe nitation election, and w whic ‘h

affected employees in the exercise of their Railway Labor —. .

Act right to select represeniatives of their own choosing. ~ oe

The Courts below had jurisdiction te deal with these Issues

pursuant to 280. 8. C. $133] and { 1337, since they arise

eer Sections 9 Third, 2 Fourth and 2 Ninth of the Rail

oway Labor Act, 43.U.S. C. 6152 Third, Fourth and Ninth. :

The Courts below determined that the subject matter of

this action fatis within the exelusive jurisdiction of the

National Mediation Board, and.that the federal courts there-

fore lack jurisdiction over the jssues which have been raised.

(eae

. Petitioner ( ALPA*)~asked the National T Mediation ; ae

Board to defer its representation proceeding while awaiting

decision: of the Federal Court in the pending action in

volving interference, coe reion and assistance. The Board ‘

refused to do this. Therefore, alte rnatively, the subject

matter of ‘this action was submitted — by Petitioner

“*ALPA’') for decision-by the National Mediation Board

in May and June, 1968, after the- Alhed Pilots Association,

a rival representing group, had applied to the Bpard for

certification as the representative of the affected employees.

dn response to ALPA’s submission, the Board took the .

position that it lacked jurisdiction to take co gnizanee of ari

deal with issues of 4nterference, eoe rei on and assistance un

less such eenduct-is shown to have oceurred during the

actual helding of an election, and that, though it, took ne

position on the merits Of the 3 issues raised by ALP UY. there

chad nevertheless been no.show in¥ whie h w arranted the de

ferral ofa representation election,

The Board ignored ALPA’s protests that no election.

should be held until the issues of interference, coereion and

-assistac.e affecting the. selection of representatives by the

pilots and copilots of American had been fully aired out and

“a solted, and a remedy provides! for an® unlawful eonduet

which may, as ca result, be found to have oceurred. Its

decision to hold an election came before a decision had

issued from the District Court in this’ action, though the

: taking of evidence aied the submission of briefs } v that € our

had theretofore been comple ted,

When the Board cuialdiched June 4 1968 as the date

tor ats adection, ALBA, on June Hy 1903. comme ‘need an

action againstthe Board ir Mel nited States Dis-triet Cone

Tor the District of Cotumbia, secking an order enjoining

the Board fon holding a representation.election before

there had been atinal determination on the wiresolved i=suc-

of coereion, interference and assistance affecting tie rey)

resentation. rights of the’ employees involved.

_ Inthe course of? proceedings before ‘the Boar i, be: fore

the Courts in the’ Distriet ‘of Columbia and be ‘fore the € ourt

below, the Board. took the. following positions concerning

its own function and dutic S:

. Before the District Court for the Distriet of Colun:

as a Board argued that it had no authority to deal with -

the iss ws which ALPA had raised.

ee - =

- : : fy.

1. Thomas A. Tracy, Assistant Executive Secretary of

the Board, stated, in an affidavit submitted to that Court:

“Tt has been the consistent position of the Na

oe tional Mediation Board since its creation under the

/ 1934 amendments to the Railway Labor Act, that

this Board has no legal authority to investraate and .

pass upon charges of carrier interference, ASSistane®,

influence and coercien m connection with the repre-

sentation of carrier employees, exeept 40 take the -

heeossary steps to see that the actual election proce

dures shall be tree from such actions by the Carrier

‘(emphasis supplied) (P, Ap. 163)."

” The Board argued that its authority undér the statyte

was limited, .It said: ; a :

election by secret ballot the hs var .is aliseharging a

duty specitigally? imposed: upon jt hy Section 2. Ninth

(a5 U. s. ('. 1o2; Ninth) of thee Net. Sines the eles

® tion has not been held there can, of comrs, bee opie

charge that,ther® was any? Miterterence, tatlhence, 0:

coercion” exercised: by thy carrier in the conduct ©!

the election and it is thé duty of the Board te eon

duet the elegtion in such a manner as To ensure thirt 1

Will be without int/rference, mntinence, or coerelol

~ Cfearly, therefore, pkaintitts ser k to enjoin the Board -

‘from proceeding with: the election upon the groin

that the Board-will be ineapable-ot holding the elec

tion as required by statute. (Board's Memeranctiam

in Oppdsition to Motion for Preliminary Injunction.

». 9). =F Sete ty

“The Iiternatjonal contends that it is seeking he

more than te compel the Board to perform its duty.

But the statute does not make at the duty of the Mes

ation Board to pnvestiqute charges of ¢€ mploue? jnted

‘

* Refers ta page 103 si the: appendix for Petitioners Bf llants”

below) in the Court of Appeal Ruch references shou dis

tinguished from the refergnee to “fApperidix! followed by. page

riumbers, which refers tothe appendix’to this Petition.

“Tfeis undisputed. that in afranging ko ae .: -

—T" *

- ference,” (emphasis. supplied) (Board's Memoran-

dum in ies to Motion for Summary Judy-

re nt, . 16). av ri

‘The Board firtuly took the position in that action that

the District Court in New York then sitting in this action

had jarisdiction to dea) with such matters, and that ALPA

had, by commencing this action, inv ked the proper remedy :

. Phe Court: Nie que stion Towould like te ask

-. las vou geocalong. “Bhis que stion Po put te you mish

he incorporated as number “4e6 What remedy does

, this unlon or any uron liave ‘under. the Railway

Labor Act: when acarr ler is inte rrering with its aferns

or. as a bargaining represemtative? What is the remeds

“Mr. Shapire. lattorney tor the Bodtd): ‘Phe

remedy which isavatlable to a union under the Rail

road Labor Net. you Hanor is the remedy whieh

the Union ipvoked In the Southe rn District ot Nes.

Yor). if itehelieves a carrier myintertering with its

. Vights te eli plova. it ean bring gsuit to re strani suc

an iInterferenee.

That i: the thrust of the “Ns ter baheeation No..

t . 40 against the Virginia “Railway System which |

cited at length in the Switehmens Union case. /f-

redtet isan court, The ifn our wudament Is th onli

forub whiel Hn ern ave dorect relief On thi. sub ject.

‘emphasis. supplied) (Pri anseript Sof) Argument,

August 2, 1960, jp. ol).

‘The Court: Let me ask vou this?) This is -just

a hypothetical question, Pt ‘obably itesdoesn ft nave

any bearing on whatwe are talking abouthere. Snap

pose the company for reasons of its own dees not tik

acertain mternational wniomw, and wants te get out

ef that unien. Atid some ef the offieers take it Gper

themselves fo tryoto promote anew unian, get certain

fiiployees interested ina new group fer the purpos:

ay “of being the bargaining re presentative, They are

sueesssful in getting a majority of the emmy lovers t,

vo dleggewi ith this new union through acts of coere jan.

uitluenece, promises, and so forth, and wh: it have von?

9 :

° 7

If that situation would arise! The next question

would be; what could be done about it? What epuld

International do’ about it? They have intfacheed

these people to get out of the union of Jnternational |

and join a new anion. | do not know whether tha!

is in this picture or not. But the point is if that did

occur, and you would have! so-called ‘acts of nter-

ference, collusion, coercion, .call it what yor will,’

What would be the rémedy of ‘the principal fin

who had been looking’ out tor the rights and inferest~

. for these people for many years. Under thaf -itua-

tion could they come into court or could thes vo te

the board: and say, fF want you to investigafe these

charges before you permit this election také-place !

Mr. Shapiro: Well. if the union has bee: tla

vrantly organized by the company, the employees

vo along because they are told if you don't join there:

will be, threats—’ a 3

» The Court: If you don’t do tris, we Will. do that.

Air. Shapig: Up to that point the Board has ne

jurisd.ction. The old union could go tof the Board:

and say, look what he ha- been doing. [| |.

_ The Court: Well supposing the company wants

to get out of International and gets a majority vote

of the employees. to go along‘. cael

Mr. Shapiro: To get the majority to go along’

The Board still has rio. jurisdiction at this point. 1

the old union came into the Board and satd, look, be.

careful, things are happeniuig. All that the Baaré.

could dovis to-say you must ao te the Destrict Court

and file an action under the act ty restrain the: edn

pany, this new organization: (emphasi> supplied) —

‘The Court >\That is what was done in New Yprk?

Mr. Shapiro: That was noi {sic} done: in New

York. Whatever the merits of that claim art there

isn quegtion but that they selected the right venue

up there. But they couldn't come down te the Board

and say do something about it. Tv Board has vo

no power as | stated.” ‘emphasis supplied ) (ibid at

a 4ee.: m

| B. In the course of the District of ( ‘olumbia Hifigation,

the Board somewhat altered its view of its own authority.

, | ae eee i

€, “> : ; e. > ; é/

on bear “ Sy eee ane

and claimed that it could assert or reject Jurisdictjon over

such issues in the exercise of its own —- discretion :

_. “Xow ‘Jet us take it a step further. This com-

pany created, come and supported a union, filed

a petition with the National Mediation Boardo con-

duct an election among its employees. The Board.

would then, I suppose, use its-discretion on the basis

of. the charges to determine whether <¢ should con.

sider these more thoroughly. It might de what was. : *

done in the WES ¢ ‘hapter case and, conduct a hear

ing. , .

The € ourt ‘Then you contede it could be done

at a hearing?

Mr. Shapiro: © Oli, it has comucted hearings,

_vour Honor.

< , * = > ¥ y .

Mr. Shapire: Do [sie} indieate that ALPA lost

its majority status as a result of this unfair conduct.

This obviously would-have been taintéd in that sense.

Flen | think the Board would properly, in its Uis- --

“eretion, entertain its petition. . But this is a matter

of what the Board can do. ALPA here -is demand.

ing. relief on the Board on the basis of what the

Board must do as a matter of clear statutory duty.

Ido not think this statute is so clear with respect to

what the Beard has done. Anyone can say the Board

violated the statute.’* crbid at 80, Si)

In its brief amicus: curiac Gieedied to the Court:

a, e

be nee however, the Board _— a wholly new and incon- .

cistent position, stayng that:

“Pho ] Board would not, of course, conduct aan

election among employees in a ease in which it deter-

mined that one é6f the unions involved was company

dominated and controlled. In this case, in whic

Board members were personally familiar with thy

history’ of the’ neotiations, the schism within ALP.A,

and the charges raised in the instant litigation.athe

soard concluded that Allied is not company Comi-

nated: and that ‘further investigation, including a

hearing is unnecessary. These conciusions are im-

. plicit j dwits holding that an election_can be held with-

ta °

. - °

x 3 11

out carrier interference.”’ (Board’s brief amicus |

- euriaé at page 8.) ~~

D. Yet in bewildering fashion, concerning the merits

of this action, the Board advised the District Court for the,

District of Cohimbia that:

“The Board of course, takes no position on the

merits of the New York litigation. * (Board's, Mem-

- orandum in Opposition to Motion for Summary Judg-

“ment, p. 19)... “af za : ‘

The Board had previously acknowledged that ‘it took no |

position on the merits of the issues which ALPA had

submitted to it, and which it had rejected. aoe ="

~ In contrast to the positions of the Board, the Courts

which have dealt with the issue of jurisdiction involved

. . ” . . A

here have reached other and differing conclusions:

¢€

A. The District Court for the: Southern District of

New York dismissed the complaint in this action, concluding —

: that the federal courts Tack jurisdiction over its subject

‘ matter. It stated: 7 eee: ;

«The argument for ALPA is that there are issues

_here beyond the identity of the representative; that

there has been influencé and coercion by the Companys

in the choice by pilets of their representative, in

violation of* the Act, specifically Section 2, Third

and Fourth (45 U.S. C. A. § 152, Third and Fourth):

that the Company assisted in the formation of Allied,

-in violation of Sections 2, Fourth of the Act (45

U.S. G. A. $152, Fourth) ; that the effects of these

violations continue; and that the Company should

be prevented by this Court from securing any benefit

from the alleged violations. The logical consequence

of such an argument is that the Cofrt shoulda dis-

qualify Allied as a_ possible representative, even

-though it might have the support of a majority of

the pilots. The Court, according to Alpa, has such ©

jurisdiction ‘independent of the National Mediation.

Board’.

”

‘Apparently’ Adpa would agree that NMB. has

exclusive jurisdiction. where the issue jis simpiy to.

- devide which’-of two ‘rivals has’ majority suppor.

But where violatryons of the Act—irifluences coercion,

ussistance—are alleged, Alpa argue}ahat this Court

has an independent jurisdiction. Atdeast under the

conditions here present, I cannot agree.

“The existence and effect of unlawful influe nce,

coerciow ‘and “assistance seem inseparable from all

aathi- rmatters to be determined by NMB ander Section -.

2, Ninth of the Act. After.all, what Alpa is saying

in effect is that because of influence, coercion and

assistance by the Company, Allied feven though it -

\night. hive majority support) caniot replace Alpa

is the *true represe ntative’. This is the very ques-

Yon whieli Congress las committed to NMB. and

not tothe courts." (Appendix F5a-Téa.)

B.- The Court of Appeals for the Sgeond Ciredit, affirm-

ing the 2 A aa reached hy the" Distrigt Court, found :,

-f a \ * .

* Appell: its argue that it ‘the Distitet Court had

‘jurisdiction’ when thie suit was filed in M: mi hefore

Allied even existed, this could not hav e been Jost |

hecause. the Mediation: Boasd eonefuded in May that

there was a geprese ntation dispute between *ALPA

and Allied “and that the iatler was not ‘disqualified.

mut it had become apparent, long before Allied *s

application to the Mediation Board, that this action

Was. subject to the vice that it soneht orders from

a federal court that might ffustrate ultimate deter-

niination, by the. agency to which Congress. gave

~ exclusive responsibility : the action should have been

dismissed as soon gas this appeared.”” CAppeidix:

- l7a-1Sa.} a. * Rett

(, Finally, the Distriet Court for the Distriet 9 of

Columbia, recognizing the predicament it%o which ALPA

hit een placed lw reason of the conflict betwee nthe Courts -

and the Board, stated: hee ae ‘a

* —The Court notes, however, that the New York

_ Court ruled that the National Mediation Board has

te °*

bee | (i Bes pees :

: | : aS, : ai, ree

interference. But; the National Mediation Board

.. lias stated that they have ng jurisdiction 4” this

case to pass upor any alfeged issues of interfér. nee

that are committed prior to the conduct of the elec-

- tion. ~ a

. » Pg

“Thus, we aves a situdtion in «hie h the Complain.

ing party, ALPA, has no forum for hearing. or

redress if' the wrong dn. tn facts ocenr."* (Appendix

G4a-Gha, ) ; © re)

ll. ALPA’s status as recognized collective. bargaining rep

resentative of pilots. : 7 eee 2s,

ALPAD has [een collective bargaining Tepe semtative

-of the pilots and copilots, of Ame riewn VE ines since 1939,

and since that dal appresimate i M Colluetive agree mais Hts

covering rules, rates of pay and working conditions of

exclusive jurisdiction over - the question | of company ?

these ine ~ have heen cor waluded betwee American

ugh , ALPAY by -its Preside nt iP. App. Oy). The most

recent agreehie ut was ° effective slannary 21, 190 until

June 1, 1! 61. Shortly hefore June 161, negotiations | Jead-

ing to-a Hew: agree ment were COMMBERE red betwoe no Ame rian

cand ALP A, and’. these negotiatiozss continued through

~ *December 1962) with no question Concerngag ARPA ¢

contimnins status as represe nlapee. e, In the course of thos

negotiation su comtractua, provision se ating forth Améri-

can’. continuing recognition of ALPA a= the collective

Jiargaining req Fesentat! ve of its pilots and copitot= Wis

initialed, agreed upon, “and. pili aced to one ride.

‘ e.

* The development of a ‘disagreement. within ALPA..

Doring negotiagions, American sought AL PAs agree-

ment -to a reduction. in the size of the crew Ou its jet air-

craft from four to. threé men. ALPA’= position was that

such reduction should be accompli> shed onjy in accordance -

- with the published f findings of the P resident’~ Commission

nom

‘on the Air linés Controversy, a Board of Arbitration award,

‘several Presidential Emergency Boards and ALPA’ s own

policy, all of which were directly concerned with the crew-

ing of jet aircraft. These findings prescribe that fight

engineers serving as third crew. members in a three man ~

jet crew should possess, in addition to the normal flight

engineer qualifications, a oe pilot’s license and

an instrument rating. f ‘

During negotiations in 1962, American advised that it

would net provice such additional training and -qualifica-

tions for the flight engineer without withhoidirg from the

pilots certain unrelated benefits, principally a reduction

in monthly taximum bours, which it appeared otherwise

willing to extend (P: App. 79). ~The pilot Negotiating

Committee, atteyding negotittions with the ALPA, repre:

sentative, responded’ by urging ALPA to abandon its

demand for pilot qualifies itions for the third’ crew membor

on jet aireraft, and to agree instea@ethat a flixht engineer

without the prescribed training and qualifications might

serve as third erew member in the three man ‘jet crew.

ALPA’s abandonment of pilot traingggy ‘and quatifications.

for the fiicht engineers would, in they union of. the Com-

mittee ive facilitated the negotiation of an agreement:

containitg the other benefits which they sought. Then and

now all air carriers operating jet equipment with a three

man crew do so with a third crew member possessing at-

least a commercial pilot's license and an instrument rating.

in addition to flight engineer qualifications.

AL? A. not in’ eavecdsent with the Committee on ‘this

issue, direeted that bargaining proceed with the object

yf securing pilot training and qualifications for. the third

crew member, in accordance with the foregoing -public

findings and recommendations and with the provisions of,

"oe

——

ALPA‘s & ‘onstitution and By-Laws and poliey which had .

ther ashen heen duly adopted by the elected representa-

tives of al pilots, including those of American.

IV. The function and sili of the MEC and Negotiating

Committee .within ALPA’s structure. “2

There are no autonomous or semi-autonomous groups

within ALPA’s structure. ALPA, and not any subordinate

- or affiliated group, is the barga ing represe mitative of more

than 14,000 pilots, employed by all se ‘heduled airlines in

the United States... ey

The structure of the Air Line Pilots Association, [nte:

nativnal, is centralized; there are no ‘Tocals’* or other

autonomous subdivisions (Pp. App. 79). The biisic internal

‘units of ALPA’s strueture are Local Couneils,

which ix composed) of me ambefs employed hr

line at acparticular base. The Loeal Councils elect repre

sentatives te a Master Executive ‘ounen, the “MECC, for

eagh air line. The ALPA Excentive Board j is composed of

the SEC Chairmdan and another representative of ene ‘hh Ma-

ter Executive Council.” Bagh Local Coune i] is represented

onthe Board of Directors whieh convenes bi- PYTTTTHinEa and is-

the highe at wove ring holy of ALPA. At met phine vs of Ue

Beard. of Directors, the pilot roup on each ¢ yrrie has a

voice on, atl mi rs, cinchiding poliey, with the voting

etyength of each such group directly. proportional to thi

memibe re in good etanding op their airline. The mineeta

tional officers of ALPA, elected by ail the air line groups,

constitate its Exec utive Comittee which, together with thre

President, is charged with the’ orien Ra of pote

~ deelared by ‘the B oard of Direesor . os

‘ontrolling: prine iples concerning collective bargaining

are set: forth in. ALP A’s Constitution and By-Laws and “iti

o -

ihe same alr

P= |

its policy manual. Article XVIII ‘of the Coustitution and

By -Laws. provides as follows:

**Conferences or negotiations shall not be initi-

ated, carried on, or concluded in the name of the

Association by any member, group or groups: of:

members thereof to make or establish employment

agreements relating to rates’ of pay, rules, or other

conditions of employment, or-any other agreements,

contracts, or’documents of a similar or related char-

acter, or any other fornr of agreements, contracts or

documerts without the prior approval of the. Execu-

tire Commitiee, or the President. Any and all agree-

ments, contracts, or documents of any- and. every

character whatsoever shall not became effective, bind-

-ing or operative unless and until they bear the siqna-

ture of the President or other officer or officers duly

authorized so to sign by the Board ef Directors.

Executive -Board, or Executive Committee.’ ‘(Em-

phasis ppeee.) (P. App. 149 at p. 65):

All disputes which arise within the Association during

the course of negotiations are, pursuant to Association

policy, referable to the Exeeutive Committee, which has

authority. to finally resolve. such disputes. The ALPA

Poliey Manual provides :

_ “If during negotiations, any unreconcilable con-

_troversies, arise between a negotiating committee or

a Master Exeeutive Council and -the Home Office,

‘such controversies shali be referred to the Executive

Commjttee for final disposition.’’

The Cogstitution and By-Laws plainly set forth the

duty of the Master Executive Council and of its chairman

on a particular airline to act in a manner consistent with

the Constitution and By-Laws, policies and objectives of

ALPA. : ‘ .

: ‘+ * ** nothing in this Section shall authorize any

Master Executive Council to request any action that

ix itconsistent with this Constitution and By-Law-

or with the best interes{s of the “Association or the .

general menibership thereof.”* (P. App. 149 at p. 29)

“The Master Chairmay shall be ~* * the Associa,

tion representative on his airline for the puphese ot

furthering afid implementing the objectives and pall

cies announeed by the Board of Directors, the Kxech-

tive Board, and Executive Committee % 7." cad,

The American pilots, as we Las other groups. had voted fr

an MEC and Negotiating Committee to function Writs

and no other framework.

V. American’s refusal to deal, with ALPA, and its dealings

with a rival group while ALPA continued to assert its

_ representative status.

When efforts’ vere unsuceessful in resolving the dis

agreement between ALPA and the Negotiating Commiftes,

‘ALP A recessed the negotitations fate ur Yovember, 162.

and reentled its representatlve (PL App. 100). Despite the _

i recess and the absence of an ALPA representative, Ameri

cin, on December 1, 1962. caused to be prepared and

initialed by its representatives and members of the Negotiat

ine Committee a docuinent purporting to be an agreement

between ALPS. and American that a reduction if Ameri

can’s Jet crew from four to three men might proceed without

pilot trang or qualifications for the thard crew member.

Flight engines: representatives present aise initialed this

document, which was referred to below as the ** December a »

Crew Complement Document’. The existence aml con

tents of: this document did not beeonte known te, ALPA «

until several month> thereafter (P. App. Th-T)). J

On January $, 1965, with pegotiations sili in recess, thes =

Americal Viaster Exeentive Conneil (M ey) met and. pur

porting to ~peak ‘for the evitire NAL pilot feroup. adopted

a resolution ‘reeiting that 11 authorized

‘the American: Airlines Negotiating ‘ommiittee. te

—_ a contract and further te advise. AAL/man-

agement that the AAL pilots are agreeable to imple-

mentation of said contract with or without formal |

approval of the ALPA. * * * ”’ ;

The full text of this resolution is .set forth at Appendix

1024-105a. :

On January 16, 1963, Nicholas. J. O’Connel!, Jr., Chair-

man of the MEC, an ex officio member of the Negotiating

Committee, and later to become the President of the Allied

Pilots Association upon its creation over two: months later,

advised Wiliam B. Whitacre, American’s Vice-President ¢f

Personnel, of the foregoing resolution and stated that:

«©* * * It was the unanimous concurrence of: the

MEC that they had the full backing of the entire

pilot group * **”?

_ On the basis of such representations, O’Connell, in January,

165, asked American to negotiate with his Committee not

withstanding ALPA‘. objections and its continuing clan

to representative status, and to conclude an-egreement with .

hi~ Committee, promising that the agreement ultimately

reached would meet with *‘unanimous approval ~~ * by the

MEC and ratification by 75 percent of the group. aes

(P. App. 88-90). ’

in response to ('Conneli’s request, American manifested

an intention to conclude am agreement, and proceeded to

envourage the Committee to do so even though the result

would bea separation of the pilots frem ALP.A and the

formation of -a new organizgtion. American accomplished

this objbetive by the use of at least four ~epatate devices :

1. It conceived and prepared substitute pages for those

pages of the December 1 Crew Complement document which

referred to ALPA as the pilots’ represeniatives and as the

“contracting party. -American’s substitute pages‘ referred

not to ALPA but instead to an unkpown and ‘unnamed

bargaining representative to be identified at some hater

oa": Gao 19

time. According to the testiineny of American's | Vice-

President they. were conceived and prepared either im De

conber 1962 er January 1963, even be ‘fore O'Connell hint

self had expressed a willingness to consider the formation

ef a separate organization, 01 tO: separate the ts from

ALPA (PB. App. 180).

The-December Verew complement | doe ument as modified

by these substituted pages Was referted to by American as

“the “modified crew complement document" » Early in Feb

Crnary 1963, Arerican, according to its own negotiating

notes, -urged the completion of an agr eement covering thie

pilots on the basix of the so- alled modified erew complement.

document, whether gr not ALPA ultimately world be a

‘party thereto “PP; App. 148jj. 145kk, 148})}.

> On January 4, 1965, OC ‘onnell requested, and Whit

acre provided a letter rejecting ALP A'S position ‘ou Crew

complement. Such a lette y bad been cough t by O'Corinell foi

use in relation to the disagreement between the Negotiatin we

‘Committee and “ALBA. O" ‘onnell rejected, Whitacre ’>

proposed letter on January $. however, claiming, that i!

< didn’t give him enough support to glo him any good,

and if this. was the best letter I aes give him, why just

‘throw it away, + = 7" (P. App. Se /

-In mid-January 19623, American agreed to considet

y) ayine ntoof wages to the mie abers of the Negotiating Com

plliittes ‘for time spentn te wotiations, if the pilots 1 timate!

~ parated from ALPA cP, App. ot 92).

VI. The absence of evidence that the pilots er.

O’Cannell’s group. : ~

Ii sup pies of the Committee's reque st it -Jamuary 166.)

that Amevican.engage in separate negotintions with it? the

only’ indication of authority which the Committee tendered

"ee, American was the resolution adopted by the MEC on

January, 3, 1963 (P. App. 90). - resolution “was con-

ceived and adoptea by persons holtigig office within ALPA,

' having been elected by-the pilots solely to dunction within

tween American aid O'Connell's Committes —Al

the Constitution and. By-Laws of ALPA (P. App. 77). As

of January 1963, ans for several months thereafter, there

was no indiéation by the pilot group that it desired the

formation of a representing organization other than ALPA,

that it authorized the conduct of separate negotiations with

American, that. it. approved-the cotanet Of fhe O'Connell

Committee, or that it no ‘longer supported ALP.A.

it)

Shortly afte r the commencement of this action, American

moved -the District Court for an order directing the ap-

pointment of a Special Master to decide

e* * * whether a majority of defé ndant’» flight

deck employees desire to continue to be represented

for the purpose of conelnding an agreement by. the

Joint Negotiating Committee. "'

Ameriean’s motion for a Special Master was decided ;

indeed, that agreement was concluded, executed and imple

tented after the commencement of this action, but before

_ tinuing right. to

any of the Issues saan were raised had been decided bythe

District Court. gag

Shortly after this action was commenced, O'Connell's

( ‘ommittec. disavowed any ‘tinte ntien of asserting any Cou-

st ls [representative | status." Instead,

they created the Allicl *p ilots Association on Mareh 21,

1963, three weeks after the commencement of this action,

an. about one week after an agreement had been reached in

the negotiations between American and the O'Connell graup

(P. App. 70-71).-- Allied ’s stated purpose was to become

certified by the National Mediation Board as the representa

-> c

tive of American’s pilots. “Allied wats created at a meeting

of the MEG, the same Mise which had conceived and

adopted the MEG resolution of January >. jO6s. The Mie

meeting afawhich Miied was created wa- called for the au-

POUBERE PHP pose Of ratifvirt the. Maveb Ta agreement (r-

App. Tab." 2 - |

On April 24, 1963, Allied pelitionad thy National Media.

tion Board for certification as representative ol American =

GO .0 i pe. nn Bioeth aia: ; * - oH . ‘ ;

pilots and Cogn Dic imer Section Nupth of the Railway

Labor, Aét. oA trne copy 6f that petition: ’

Npyrerlix Toa Ta Iu its petition Allied Ante sivas .

[set forth “al

ae, “dispute laut AP Eset UTTAR tie 6 pokes oof

American Airlines, Ine! as to wherare sie representie

tives of these eniplovers. od he hits

and that Allied and ALBA are parties ‘te that! alispute,

Oi Juli, 4. JUb3, netors oan hele rmination had heen

seared ha the peistrect (*yurl vi thks ccobion + rhu th National

Ve diatian Boareé “n Allied» je tition, Materiean anid Adiseal

Cres ufed and placed if » effect the Marcd F5 stargewe nit

whe hi hal hee we qotiate do hu Amen an pel thee OVE conine }

Cnmittes Tis cavecment as Awe can ded Ulead state

Mts crecuted by then cel because the Destrut part fer

} /) , ri iv t 7 , F tf ‘ &t., +} _

f (sPpre seid paeted deatel, “af Bx aif ” he pfive gorse

j I j { { ;

sprenpmed Ube Boa Pop gerpar beaededee pthe vepresent Pies aofeactl

iy J

waht he Allred +

: sie “

ee ‘ 4 n

> Fis Meer yt rar: pare yet paatiwiger sy” oof Md ‘ ey ‘ ‘e

i va Tepors sentative: OF ti ! stte ae { Tti 4

reported to hays urged lipemia, wie hatiuary f My ‘

ye onneil ~ Tegqutest ee? ep eLrsite negotiation - sare? bys ut e!

Al PA’s porate ~? . ?

VII. Negotiation of an apmenein with a bargaining repre-

sentative to be formed and identified later.

Followi ing the cortelusion of the negotiation of the March

W agreement between American and his committee, O’Con-

nell stated:

_—

4 ‘ : ; . or

‘The Company has committed themselves to the

fuct that they have an agreed-to amended basic work-

ing agreement with related documents that they will

ioner and put into effect at such time as there ean

be produced a person with the satisfaetory cre

dentials to sig the doeuments.”* (P. App. 78)

Ano unusual circumstance was preseited by the negotia

tions between the Commeattee and, American. During Janu

ary and February, 1965, no bargaining representative recog

nized by ‘eithes of them as valid was in existence; yet they

nevegtheless proceeded to bargain an agreement and then

te fashion a representative which wotld be agreeable

to the thevatl,

_A. The Formation of a Separate Representing

' Organization.

Prior to the creation of the Allied Pilots Association on-

Mareh 21, 1965, Whitacre, American's -Viee-President,-

advised the O° ¢ ‘onnell Gommittee that the agreement of

Mareh 15, containing benefits which they sought, could wot

be implemented until a formal and responsible representing: -

organization liad been formed: sinee American

es @ 6 @

wonld need assurance that we were deal

ig with a responsible organization and formalls

organized group, so that they weuld be responsible.

We vould need to know-the names of officials ‘and

couneil chairmen, and probably counsel, and mem--

bers of thimgs like system beard of adjustments, and

things of that sort. and that is about as far as 1°

expanded my explanation, of what we ifeeded, and

one of the visiting members said, *We understand

What you mean, and 1 don’t think there will be any

question, but what we will have a responsible 0. ‘gani-

meanest

Whitaere testified that he repeatedly advised the- pilots of

American’ s concern for the formation of a responsible

organization : 3

. AS * © * DT have had occasion eight or ten times

to tell both the pilots and the engineers that if AI,PA

didn’t accept this contract that the company couldn’ 1

do business with any group unless they were repre-.

sented by a formal and responsible organization.”’

"On February 26, 1963, more than three weeks’ before’

Allied was formed, and onty six days after American, by-

withdrawing its proposed substitute pages, reverted to the.

position that ALPA represented the pilots, Whitaere stated :

: “The Witness: This isswhat T was explaining,

“that the pilots wold have to have a formal organiza

tion before the Gomypuiny could even sign with them

or rk Hlement ér do any business. at all.

Did vou explain at that — what von-

Pes 0 by a formal organization? | think T difi..

Ves, sir. .

( Will vou tell us what you then said! <A. 1

think ] said that they weuld have to go through the

ps : formality .of determining a bargaining representa

tive, that they would have to have an cache ire ‘Ss, attor

nev, counsel, chairman and so forth."

> B. Pe er s Acknowledgement That the Separate Nego-

oe tiations Had Produced Support for a Separate ‘Repre-

sentative. — eae

A meeting was held,on January 30, 1963 at American ‘>

offices, attended I. representatives ot ALPA and Ameri¢an, +

and called at ALPA’s request in ay attempt to bring ahout

a cessation of separate “negotiations. There, Whitacre

stated that in his view, the benefits contained in the agree

ment then being negotiated with the O'Connell committer

would produce almost unanimous support for that com:

mitties from the pilot group: 3

“Mr. Weiss, 1 believe. about this time. or a little

later, addressed a stutement to me and said ‘Don't

ia 7 - O4

_ you know that this has been a real rovgh committee’

over the years and the pilots on American Airlines

-have never completely supported this committee.’

and I said, ‘Yes, Mr. Weiss, four years ago I would

have said this was true, or two years ago it was

prohably true, but there is something you don't

cunderstand about the situation now; since the.

proposal in July and the news of this solution of

guaranteed employment for the second offieers, reduc-

tion in hours for all flight crew members and im-

proved working conditions, which is what the

American pilots have always tried to negotiate, in

my ‘opinion, 100 percent, or very near 100 percent,

of the pilots on American Airlines will completely

support this committee’.’* (P. App. 86)

REASONS FOR GRANTING THE WRIT

al: . POINT L

The Court below erred in tniding that the federal.

courts lack jurisdiction to deal with the issues raised

by the complaint.

The decision in the Court below, viewed with decisions

in companion mhatters, now pending hefore the National ©

Mediation Board and the Court of Appeals for the District -

of Columbia, appears to establish that substantial mandates

of the Railway Labor Act may not be judicially.enforeeable.

The complaint in this action raises issues relating to

interference, assistance and coercion practiced in advance

of the actual conduct of a representation election”by the

* Mediation Board, but which nevertheless affect the right

of employees, under Section 2, Third and Fourth of thé

Act. to select a collective bargaining representative of

their own choosing in an atmosphere which is not polluted

by the continning effects of unlawful. pressures.

—~

25.

The Court below found that it lacked jurisdiction over

such matters and that exciusive jurisdiction to deal with

these issues is vested in the National: Mediation Board. —

“The Mediation Board took the opposite view; it deter- -

mined that. ALPA had properly invoked the jurisdiction of °

the federal-courts in this action. It-advised the District

of Columbia Court that the Board °

‘thas no legal authority to investigate and pass upon

charges of carrier interference, assistance, influence

and coercion in connection with representation of

carrier employees, —- to take the necessary steps -

to see that the actual election procedures shall be -

free. from such actions py ‘the Carrier.” .

In the District ¢ or the District of Columbia, °

Judge Walsh noted that , * ;

«© * * * the New York Court ruled that the Na-

tional Mediation Board has exclusive jurisdiction

over the question of company interference:: But the

National Mediation Board has stated that thay have

no jurisdiction in this case to pass upon any alieged

_ » issues of interference that Are committed prior -to

the conduct of the election.” (Appendix ‘Ma. )

' To date, every forum in which ALPA has sought a

determination on the merits of these issues of interference,

‘ eoercion and assistance has deemed: itself to be without

jurisdiction to deal with such matters. Every such forum.

has found that exclusive jurisdiction -over such issues |

resides elsewhere. While there appears to be little doubt

that such issues are justiciable somewhere, they have not

vet been ruled upon in a forum which regards. itself as

competent.. ©. Sea

“6

e ‘

When Allied, the alleged. Rnesciary of Amerjcan’s -

assistance, petitioned the Mediation Board for an election,*

'ALPA asked that the Board (1) defer its election processes

until the final determination of the isspes raised in this

action or, if aA shontd refuse to do so, that it (2) take: cog-

nizance of and itself deal with ‘the merits of such issues

before ‘proceeding to an election and certification. After

an investigation by oue of its mediators in which no testi- -

mony was taken, no hearing held, and no opportunity to

present evidence extended, the Beard rejected ALPA’-

request in its entirety... Thotigh it acknowledged’ that it

fid not passed upon the issues ‘of interference, assistance

and coercion, and that it took: no position or the meriix of

‘this action, the Mediation Beard nevertheless. determined

to proceed quickly te an election.

The Court of Appeals be low refused to accept the

+ Board’s own unchallenged jview that its processing of

‘Allied’s petition did not ‘result in a ‘determination on the

merits of the issues riised j in this action. Instead, it con-

eluded that the Mediation Board had made a determination

on the’merits of the issues im this action, and if apparently

viewed this action as a request for judicial review of the

soard’ s findings. fae) .

ire cotiedie | ence performed its duty. True. po

_testimony was taken, as it was in the WES case, mn

the Board's manner of investigation was not onls\as

good but better under-the circumstances. As we a

told by an affidavit of its Assistant Executive Seere

* tary, it utilized pleadings, exhibits, and portions, of

the record> already made in this action, which each

of the three members review wed. In addition it had

the important benefit. of its own intimate knowledge:

° Allied’s petition was filed on April 24. 1063. after -che com-

mencement of this action. and after most of the conduct complained

of had occurred, but betore a decision by the District Court.”

RG :

F f° idee #

of the negotiations, derived from the participati® of

its representatives therejn. ALP has told ‘us of no

additional material facts it would have presented if

the. Board had given it a further opporturiity; its

complaint relates, ngt'so much to the adequacy of the

information befgre the Board as to the Buard’s con-

clusion that no wrong had’ been done. We see

more basis for judicial interference with that aN

sion than with the conclusion in the Switchmen’s case’ oa

that the New York Central's Yardmen should vote oo,

on, a system .wide basis.”" (Emphasis suppiied.} ; \

(Appendix loa). c

Thus, the Court below has found that a'conclusive deter. /

mination of the merits in this action resulted from a Media

tion Board invesfigation, an investigation which, by. the

: Board's own statement, it had no jurisdiction to engage

upon, and one which, as the Board has twice acknowledged, —-

did not result ina determination on the merits of the issue- ;

of interferency, assistance and coercion.

, ° ae

The Board has.never concluded that **no wrong has been we”

“done”. Fven-the most liberal construction of the. Beard’ we -

brief adinicus cunae to the Court helow. 4 which it reversed” Z&

. Prk. - ‘ . ¥ . . J -

the position which it had theretorore. consistently argued,

and from which the Court below apparently drew facts.con-

cerning the Board's investigation, does not support = hou,

conclusion. There, the Board stated: Cee ae

oe * * the Board conelnded that Allied is not come +,

pany dominated: and that further itgvestigation in °

cluding a bearing. Is unnecessary.” Foe ‘.

[he complaint in this action is tet Jimited 40 a-charge of

démination. Anda finding of company domination is notin:

dispensable to a finding that unlawful interference with

employee representation rights was practiced. “See, CM.

Garment Work rs vo NLRB, 366 U.S. 731 (1961).

Despite its examination into the procedure followed by

the Mediation Board, the Court below did not have before

it any issue to which the procedural adequacy of the Board's

treatment of the charges of interference, coercion and us-

sistance was material. No such issue was passed upon

by the District Court, nor was such an Wprue raised by the

compiaint In this ac@n». | eae

There. had been no request by the partici Ste the Court

of Appeals that it assume orjginal jurisdiction to evaluate

the adequacy of the N Nati®nal Me Nation Board's, treatment

of issues relating.to Railway Labor Aét violations. . The

petitioner had drawn the attention of the (Court helow ‘to

‘the Board's own Uisclaimer of Jurisdiction over such mat-

ters. The opinion of the Court of Appeals inexplicably does

not give effect to the Board's undis puted statements to the

District of Columbia Court concerning the scope of ité own

inepuiry.

Moreover, Jucge Walsh in the District Court for the

District of Columbia, in ayyaction’to which the Board was

“i ° . o ew kK . “ e

a party and in which the procedural adequacy oi {Re Board's

treatment Of these issues was properly an issue, questioned

the conclusion that the Mediation Board's investigation was

adequate. He stated: es

“Counsel for deferdant asserts that the Poard

has conducted | an ‘adequate investigation.” Tt is not

“ce ‘ar to this 4 ‘ourt What. comprises an adedpuate in-

“Ve tigation iff the absence of a fornval hears or

when the’ parties’ are not aceorded the oppor Hits

of pre senting evide nee of inte rhe renee pt (Ap

Y4a-9a:) eae sts,

The ‘Court below held that So€it Howe H's onion Nu-

tional Mediation Board, 320 Ut S. 297 (1943) stands as al’

bar te this action, stating that: - tL

a suit to review administrative action usually thuds

on a be ‘tter footing than one whose maintenarres

rine

{

‘

ae /

would prevent an administrative ageney from per-

ea statutory duty.”’ (Appendix 1a.)

The applicability-to this case of the Court's conclusions

on review of administrative action is hot clear to-Petitioner.*

This is neither a suit te review administrative action nor

one seeking to enjoin such action. This is an action seeking

a remedy against a carrier and a #ival representing groupr

for interference, assistance and coercion in violation of. the

Railway Labor Act. Considerations relating to judicial

review-gf Mediation Board action were not raised herein

hy ALMA nor are they materia.

‘ ‘The conclusions of the Court hylow regarding review of

administrative action, whatever thei materiality in this

‘Case, are dianietrically opposed to the view of the Court of

Appeals for the District of Columbia, There, in an action

brought after a Mediation Board certification, seeking a

remedy for antecedent interference, assistance and -coer-

cion, that Court strongly indicated that it had jurisdiction

to act upon the Board's refusal to -deal with such is-ues .

before the Board had. handed down a certification, but not

thereafter. Ji stated: : .

‘In the presentscase Conductors had. prior to

this-controversy, represented road condnetors, and

/Trainmen had represented yard gonductors. When

‘the right of the former to continue to represent read

; conductors. was challeitged by Trainmyr ane. it Was

; charged that. there was collusion betAcen Trainmen

and the Railroad, with the purpose of influencing the

electors in casting their hatlot, we hink the Boarel

should have investigated the cbarge before calling

or holding an clection. This =@kms to us to follow

from the provisions of the Section of the Net under

which the Board is required to function, The Board's

‘justification that jurisdiction to police the election

was confined to the event itselfand not tue ceireumi-

‘tances leading up to it, does not appeal to Us. See:

Teras d N.OORR, Co. v. Brotherhood de. 2351 U.S.

548. But after the election had been* held and thé

majority of the votes had been cast and counted for

Traimmen and the Board had certified it as the bar-

gaining representative, the decisions of the oe tes

Court in.the cases we have referred to, as well as in

the Missouri-Kansas and Southern Pacific cases de-

cided the same day, as we understand their purport,

foreclose the question we have here and deprive the

courts of all rights of intetference."’ Order of Rail-

way 3% onduc fers Vv. National Me diation Board, 141 F.

2d S66, 567-68 (D.C. Cir. 1944).

And see ALPA‘s companion action in’ the District “ot

Columbia, where the District Court, in a decision which

cannot be reconciled with the View of the Court below, held

that it possessed jurisdiction to enjoin the Mediation Board

from conducting an election and issuing a certification, and

opposing arguments, grounded upow Swiichmen’s Union.

Though an appeal is now pending from that deeis sion, the

L ‘ror assigned on app al does not relate to the Court's

cenclusion that it possessed jurisdiction to enjoin the Board.

To the same effect, see also Association for the Bene fit af

. Non-Contract Employers Av. National Mediation Board,

D.C. DLC. Civ, No, 973-63 (Maw 3, 1963).

. Thotigh issues relating to the Mediation Board election

proceedings have not been raised in this action, it is never-

theless relevant that. the Board has, on the-basix of the

decision herein helow, secured an order dissolving the in-

Junetion issued against it by the. District Court of Columbice

Court of Appeals, and is now proceeding to an election and

vertification even though no decision on the merits ot the

issues raised has yet been handed down in a forum deeming

itself competent to decide such issues. As the Court below

acknowledged, the National ‘Labor Relations Baard does.

‘not hold a representation election before it has finally passed

it issaed such an injunction, notwithstanding the Board’s’ ’

4 amet. 31

~ ; At . 0 eo

upon the merits of related unfair labor practice charge-

(Appendix 12a, note 8). See also, to the same effect:

Mays. Dept. Stores, d boa Famous Barr Co., 61

N. L. BR. B. 258; i )

Ellis & Watts Products. Inc., Case No. 9-RC-4106

(Administrative Decision of N. L. R. B. 1960);

Borg-Warner Corp., Case No. 8-RC-2154 (Admin-

istrative Decision of N. L. R. B. 1995).

Apparently the Mediation Board regards this “principle,

uniformly followed by the N. L. R. B., to be inapplicable to

representation proceedings under the Railwey, Labor Act.

The foregoing discussion of proceedings in this action,

in.the District of Columbia action, and before the Board

indicates the serious jurisdictional perplexity which hia-

evrrounded ALP.A‘s continuing aftempts. during more than

eight months of litigation, to find a forum in which the issues |

raised in this action may be resolved. By reason of the in- -

consistent jurisdictional determinations emanating froth

the several forums involved.* and “because of the absence

of a clearly expressed duty upon the Board to respect

judicial decisions defining the Board’. funetion~ and respon

sibilities.” * ne prompt or effective remedy for Railway

——

: ¢ .

*The Board itself has taken chametrically inconsistent positions

a> to the scope of its own jurisdiction over such Issues on different

eccasions. Compare the position which, it takes m-the instant case

with that described in WES Chepter. FELA v. National Mediation

Board, 312 F..2d 234, 237 (D. C. Cir. 1962). .

‘ ° . . . ~ -

** 1 1944. thé Beard took the position that. it had no jurisdiction

- - - 4 - J

to deal with carrier interference, assistance and coercion except where

such conduct was practiced during the actual physical holding of an

election. In Order of Railway Conductors Vv. National Mediation

‘Board. 141 F. 2d 3660 (D.C. Cir. 1944), the Court of Appeais for

the District of Columbia strongly disapproved of the Board's narrow

view of its own jurisdiction. Despite such judicial, disapproval, the

roar now reiterates, in‘the. District of Columbia action, its 1944

position in language almost precisely identical. r

—_—t

Labor Act violations iy available. even if ALPA were able

to find a forum which admify to jurisdiction over =uch

matters. a ; :

While the complaint in this action does not raise issaes

relating to the duties or responsibilities of the National

Mesliation Board, (though the extent of federal court juris

diction tn thiS area may in part turn upon jurisdictional

or remedial limitations upon the Board) this action does

raise an issue fundamental to-the elimination of all of the

jurisdictional! confusion Ww hich has attended this dispute.

[hi this aetion, pe ‘tithower secks a determination that the

federal vourts, concurrently with the Board, Possess Jur

diction to deal with issues relating to. interference, assist-

ance and coereton of empiovces in the exercise of their

Railwaw Labor Net richt to select representatives of their

own choosing. As a corollary, Petitioner: seeks a deter

minat.onthat it is ontw in the federal courts that a complete

and wholly effec tive retueds for such violations ts avai ible.

since te Beard’ is admittediy without: authority to iste”

remedial orders such ascthose issued in parallel situation=.

by the National Labor Relations Board. The oily ‘remedy

Which the Medisition Board can grant is an order directing

the holding of ay election. or an order refusing to dive et the:

holding ‘of an election, a .

The federal courts have jurisdiction wider the Provisions |

f Tithe ZS UL S.C. Section 1837 to enforce the duties aid

p Piss sot ne in-+he mandates of the et. They have

done so Upol many occasions. See for example,

Feras and y ORR. ve Clerks, 231 ULS. 548 (1980) -

y irgwntan Railwan x. . Sua wm Fe eee = BOL

U.S. 515 (1937 :

Steele vo Loutsrille aud Nashrilic Railroad, nos

U.S. 192 (1944):

. Tuustall v. Brotherhood of Furemen, 328 U. 3.

210 (1944); ae dat») ea

Reatroad Traimmen ¥. Chicago River d& TR. R..

353 U.S. 30 (1957) ; .

Railroad Yardmasters Vv. Pennsylvania Railroad, -

244 F. 2d 226 (3rd Cir. 1955); bor

| Northwest Airlines y. ALPA, 185 F.Supp. 77 OD. ©.

Minn. 1960) ;.- :

American Airlines -v.. ALPA, 169 FL Supp. iia

(S. D. N.Y. 1958).

The Court below found the Virginsan Railway decisions

of this Court inapplicable here despite the identity: between

the remedy granutec in that case (a direction that the car-

rier bargain collectively with the true representative of it~

employees, and pot with any other) wud the principal remedy

sought by ALPA in this action. +o

‘The Court below agreed that tae federal courts possess

jurisdiction to.

‘require the carrier to bargain with the duly des.

iguated representative, Virginian Fy. Co. v. System

Federation, No. 40, 860 U.S. 515, (1937) +

‘Appendix Ida-I4a), reas

but that Court did not agree that-ALPA has stated a claim

to which the Virginiax Railway principle is applicable.

The Court suggested two reasons for its yefusal to tind

Virginian Railway appli€able here: that unlike the Union

involved in the Virginian Railway ease, ALPA owed ity

incumbent representative status not to a certifiehtion of the

Mediation Board, but rather to recognition Voluntarily con

ferred by the carrier; and that a substantial representation

dispute requiring the intervention of the Mediation Board

ix presented here, though ‘no such’ dispute was present in

Virginian Railway.

4 ” 34 -

oS i 3

A-distinction. between certification and recognition, as

Judge Friendly has heretofore recognized,

oS :

** * * lack~ legal significance.’

* NLRB \. Superior Fireproof Dour &. Sash Co.,

IR zd {ia ta0 a 2d ir. 1961}. . * ‘

. ° And the National Mediation Board has itself stated that:

‘Ty situations where a carrier's emplover~ ar:

not represented, voluntary recognition extended by

such carrier to an organization covering a vwrat? o:

Board a> having the same effect as a certification.

in the prese nt case the employee- concerned we re

represented by another organization at the time ot

the so-called, sv plata ide recognition, and were net

on notifies by the: farrier gf its intentign to recowniz

another organization, therefore were not afforded an

opportunity to protest therr rights.) In the absene:

> oof a legal: determination of these issues the Board be

heves the volunfary representation presiously estab

ished between the Carrier and the various organiza

tious and associations representing its emplovec

should be considered as éffective until changed in ae

cordanes with the proyistons of Section 2. Ninth, ot

the Act.”

Matter ot he presentation of Paw Amentwan Ae

dards. duc. Y Detertrinations of Cratt or Uias<'

881. 386

Nor does thre second distinetior: suggested between’ thy-

aciion and Vargas Raidieay support the deerion below

The-sabstantial representation dispute requiring the inter

Vention of the Mediation Beard did net com? inte exis tener

until at least two month~ after Amerean’<s January re

fusal to bargain with ALBA, a refusal whieh eecurred at a

time when even the Connell Committee did not challeng:

Class of its emptovee~ woulel be considered bx the

ALPA‘~ representative status. , The Court below found

that <uch a dispute. 7

, 8°? * became an almost imev ‘table prospect wite

in a few week~ after this action Wwa~ brought on”

March 1 and erystallized “into a aoFtainty” by late

April” ‘ (Appendix. I4a)-

A fortiori, ne such dispute existed pr ior to Mareh.

If there was ne substantial represe witationalis sputé priat

te Marek, then how were the affected emplyyvers wepre

sented between January aie March, 1963. By the Allivet

Pilot. Association! Plainiy not, -1mee that’ Association wis

not then in existence _ By the O' Confell Cominitter ! Vilainiy

Het, sneer O'Con well demed that i Comimittec sought te

terminate ALDPA‘. repesentative statue af that time. dn

deed, (PM Connell asked ALVA ~ pre sajehemt. am date a Miarel:

ey WE Ae oxecute the Marl Yo agreement and thus te

coutinitie as the pilot)" re “prase npative, Ware the pilet~ im

represented between, Janaaey aired March. 137 Plains

not, since ALPA,. the representative of these emyroyees

CONLIN OMS LY sinner Ww “continued te administer the prov:

cians of it. mest recent agreement with American for th

bene tit of thre pilots. While contiitinge to otes! await

the -epnarats pewotiatiotin tiaers in it) . edn and tere

que-t that Amerieat resume bargaining, with it As the

Mewiatnien Board higt~ mtgatedt,

es the voluntary representation previo.

~tablishedt bets wee the Carrer and “the varie

representing iis employers sloulel be considered a-

effective: unti changed in a@eordanee with the pre

Sips lotie of SaecLbon pia Ninth ot the PG fed : 1 3/ ithe 7

di: press nlhatian «of fran Ae nied Airways. I;

Supers :

Ageordiniz to the Court beri. the preseiies ot wo cnbe tanita

represe htation question in March and thereafter forec dosed

the perssrbetlity of a qudieial re tects for Ame rican = retusa!

‘to bargain with: ALPA in Janu: ary. But the Courts below

foiled tocmoke clear why the existence of thet same sub-

stantial ve prese vtution dispute requiring the Board's inter-

vention was not found to be tycousiste wt “ Wh the de alings

be fives u Amertcan and the O'Connell Committers, on be ticcen

Am rien and Allied, or with the conclusion, execution and

implementation of au aareceit betue on American and ow

ef the rivals hetare the Mediation Board fatrd pror the A the

tirtea vention tombe 4 WECOSSUDH ha the Court below.

\Moreover, the District (logy Pound! he Jurisdtetional bosat

toa grant of injunctive relief in taver of the AN Chip ',

RELA, the tight engineers” repre sentalite, Yet that Const

itself found that durme the operative: period, boveried

rimmed that the O'Canwll Committers represented flight

frapterns ax well ox pilots CNppendix Wa). Phe Court

thoes tot show why a substantial representation dispute re

quesing the interevention of the Mediation Board Cand a

proving the federal courts of Jurisdiction to act) was there

by created with féspect io tha pilots. but not with respect 1

the Hight engineers. A distine trom between the ANE ‘hapte ',

PEDAL as acortened ve resentative, and ALIFA, as a recog

wie representative iss i= shown above, without legap Six

Hifieances AP . ae '

Amefiean’s refusal oo: fanuary te borg rrezsniye gouiy with:

ALD AL at atime when ALPACS representatte} statis wie

Hotoin dispute. makes the analory between, this aetion anid,

: Vorgimsan Baildey asain exnet one. The Jurisdiction entitle

; lished by thi« Court in Virginian Railway end (can be ae

Phimtract Court to warrant rehef/“ta the iyteryetor

have been asserted below te proviele the remedy <ouy

ALPA. = ; ¥" 5 ‘

Moreover, the view of the Conrt of Appeals overlook ~

“ire and significant area ti Heciired judicial action, plainly

iredpeated by the laci«< of this Cie Assuniing a substan

te s

tial representation dispute’? within the cognizance of the

National Mediation Board, -the very existe nee oof ‘such a

dispute makes proper federal jurisdiction to protect the

parties while the Board’s process is inde way, to provide a.

remedy invaid of the function of fhat Board? aan to prevent

the de-truction of the syubjeef matter of the repre seritation

dispute until that lis ~puleé has been resolved by the Board.

‘The complaint hereiu seeks an order enjoining dealings be

tween the employer and the rival Pending the resolution of

such dispute ithe manner provided by law. Such reliet ix

highly appropriate under these cireumstanees ; only the

federal@ourts can provide such rele

he legislative history surrounding the adoption of th:

prnatant baiaboon Agtin W926 shows that Congress iutendesd

the ourts te chtorce the tnanedates af tie Rativay Liber

Net) ‘Vhs. ig the hearings before the Tottee Committers

ou Duterstate and Foreign Commerce on the passage of the

Railway Labor Actoof 126; the folowing statement. were

rrrateder bey % rapier of the Net coneerning the power ot tha

federai courts to enforce the duties inmposed tpon earrier-

And labor organizgtions by that Net

Mi, Frederick~: How i+ that entorega ?

Mr. Riehberg: "Well, when you “iy to require,

| ic not want to sav that it eonipe Is itt thee Setise of

oe ao degal toree on the Mh. Wee hiave avec doin

the bill in any way setting up any pena y seetions 6

any sections for the inveeation of ary jantieiad an

thority, exeept in the enforeement- af aa arbitration -

award. “The thought being thi-. that so fur ast thi-

law stated duties imposed upon the parties by sect

of Congress, if they failed to live tp.to their duties.

and there was any caction which a eon cond take

corsrstent with the judici ial powers anal its finnitation

to compel the enforeenient of that duty as a legal ob

livation. it would be subject to enforcement. But the

daw for such enforcement or compulsion should te

de veloped in the eourt~. according to the old com

mon law theory ot letting the courts develop the: tay

38 7% 2. sane tte

———

after the obligations are clearly understood, rallies

than to. write into the law a specifie liné of penalties

and writs of enforcement.’’ (Hearings on H. R. 7180,

69th Cong. Ist Sess. Page 40) fe oe

In the Virginian Railway case, supra, this Court held

that the obligation of the employer to deal only with the.

true representative of its employeex and to refrain from

dealing with ail others is appropriately one to be enforced

by the courts. - It said: .

“Tt is, we taink not open to doubt that Congre=-

intended that thix requirement be-mandatory upon

the railroad employer, and that its command, ma

proper case, be enforced by the courts” (300 U.S.

at 545) gts

If the federal courts lack jurisdiction to deal with these

issues, the only ‘effective mean~ of protecting important

individual right~ gnaranteed by the Act will thereby be-

eliminated. ;

The National Mediition Board may deal with charges o!

unlawful interference, coercion and assistatice only under

the provision~ of Section 2, Ninth of the Act, after its

services Lave been-inveked in a representation.» dispute.

’ Morcvover, under Sections 1203.2 and 1206.2 of the Rules ©

the National Mediation Board (Appendix 98a-T0ta), its

services ina representation proceeding may, be invoked only

by an appheant whe presents authorization-te-act, card-

s1gned by at least a majority of the employees in the grenp

atfected by the dispute. Consequently, a union has no remedy

‘foxuulawful interference, coercion and assistance at. the

| National Mediation Board unles® it has the support of a

"majority ‘of the employe es ‘at the time of appiication to-that

Board.

’ : . ‘ xe

If the unlawful interference, coercion and assistance

have achieved their intended objective, however, the com-

vor . . > . oe

plaining union may, as a result of such conduct, no longer

239 |

_ have the support of a majority of the employees. It will.

thus be unable to apply to the National Mediation Board for

‘relief. Under such circumstances, if the organization which

‘hax received the, benefit of the unlawful conduct chooses

not to invoke the Board’ s serv ices, and if the federal courts

have no independent: jurisdi@ion te deal with such inter-

ference, coercion and assistance, no effective remedy is avail.

able for admitted violations of the Railway Labor Act. It.

woul L necessarily follow that a remedy for unlawtul inter

ference, coercion and assistance is available at the Board

_ only when there tnay be no reai need for the remedy, that i-,

“owhen unlawful conduet has Not ge mieved its unlawful ah

jective,

An additions! diffieuity i~inberent in the argument that

the federal courts have no jurisdiction of sueh matters, If

the series of the Board in representation proceedings may

‘be invokwd only by a union possessing indicia of majority

support, the anion whieh ha~ received the benefit of the

unlawful interference. coereion anil Assistance and ha-

thereby achieved wicerite support would not require the

services of the National Mediation Board. -Having received

recognition from the carrier, certification would be unnece-

cary. Under such e¢ireumstances; the invegatien of th:

Board’s services would serve only to furnish the complain

joe union with » forum. ‘not otherwise available. in whiel:

‘toair these Railwar Labor Act violation=. .

This is not to say that the federa! courts have jurisdic

tion to determine, as between rival groups, whe is the true,

representative of the employees. That is an altogethe

distinet matter, An effective remedy in the federal court:

‘for interference, Coercion and assistance which affected em

plovevs in pheir-selection of representatives will not trespise

npon the function of the Board under S Syction 2, Ninth of

sm,

the, Act: eecie saan

While the National Mediation Board possesses an indé-

pende nt jurisdiction to “deal: with issues of interference,

coercion and assistance, that jurisdiction i is of a concurrent

nature; té be exereised side by side with the fede ral courts.

The Board’ s jurisdiction is predicated upon the lan-

guage of Seetion 2, Ninth of the Railway Labor Act, upon

judicial decisions, and upon ‘the Board’s own acknowledge

ment Ln ses veral administrative, decisions where it has gs-

sorted the jurisdiction which AL PA unsuccessfully sought

to invoke.

Section 2, Ninth; provides in pertinent part:

in such an investigation, the Mediation

Board shall be authorized to take a seer@t ballot of

the employees involved, ‘or to utilize any other ap-

proprizte method of ascertaining the names of their —

duly, designated and authorized representatives in

= such manner as shall insure the choice of representa-

* tives by the employees without interference, influence,

- or coercion ‘exercised by the carrier. * * *

The ‘Court. of Appeals for the District of Columbia has

previously determined, contrary to the position, now taken

by the Board, that the Board should deal with the merits of

issues such as those raised by ALPA, even though they re-

late to events which occurred antecedent to the ‘éactual

election procedures.” (Order of Ratlway Conductors vy.

_ National Mediatewon Board, 140 F.2d 866, 367 (D.C. Cir.

1944) ). | |

The Board's ‘refusal to, take cognizance of such issues

‘under present circumstances is not only infonusistent with

applicable law in the District of, Mbepbia Circuit It is

also inconsistent with the Board's own previous statembnts

and conduet concerning its furnetion in this area,

| In WES ¢ ‘hapter, Flight EF nainvers International Asso-

ciation v. National Mediation Board, 314 F. 2d 234 (D. ©.

41°

’

. November 15, 1962), the Board did in fact take onX

zance of a charge similar to that, made by “ALPA herein

that one of two rival representing organizations Wag ;

assisted and dominated Hy the employer in

Violation of Seetion, Thivd and Fourth of the Aet:

The Board held a hearing on these charges, taking

pertivent testimony but declining, becauee of Meg of

power, to compel attendance a CONTAIN avithiesses Yet

oqneste ad hy the Aseoc lation.” 314 F. 2d at 237 )

The Court D Ap pe ils there uy prove the role of the Boar

i taking ¢ cognizance, of such issues, atk found that the

Board had not exceetled its statutory authority ‘by domi so.

Lk a recent decision Dy the :National- Mediation Board

it Matter oft Brathe rhood of Railu ay and Ste amship (‘le rhs a

iMieghens Airlines, Ine.) Nationa! Mediation Basra Cus

No. Roos7o (T62), thie Poared ~uspetided the prodessine orf a

- a Yepreset tation jee ction in order to deal with evideres of

interference and coercion by the-earr) ier, practiced inv ‘ola

otiont of the right: of eriplovee. ander Section 2 Third, and

Fourth of the Raifweay Labor Act: To the same etfeet. se

alsi.ecg.. National Mediation Bard Case No. R186 4955) 2

National Mediation Board ¢ ‘ase Not Re385 (1928): -

While tht Act, judieial dee ision~ ‘and the Board * amt

— ymast practice demonstrate: thats Contrary 1 the position it

1 LOW OS Prt ses, it claws JHPseers = jurisdic THOT ter ede = With threes

issties, considerations relating 10 the kitnl of relief whieh |

tM) Board can provide are highly material, ms | .

In this action, ALPA has sought an order 7 | .

(1) “enjoining asiy furtlier negotiations Gr tar,

Maifing between American and Allied. .

(2) enjotping the making aad implementation of

collectives butgaining agreements by and between .

et - ,

them,, .

42°)

(3) enjoining American's éontinuing refusal to

biepae coljectively with ALPA as the true repre-

sentative of the pilots, and

(4) enjoining any changes in the rules, rates of

pay, and working conditions applicable to those pilots

without: ALPA’‘s consent.

AL. VPA hax also sought a declaratory judgment setting for th

the respective rights of the parties, as well as damages as

compensation for the i injuries suffered.

Admittedty, the Board does not issue remedial injunctive

orders, Nor can it grant damages for statutory violations,

fs he. only remedies Which are availatle at the Board are (1)

an order directing an election, or (2) an order refusing to

direct an-election, Tf the ieee courts have no jurisdic:

tion to deal with sneh matters, the remedies available for

a wide variety of violations ‘are severely restricted. This

protoneed inadequacy of remedies available at the Board

would, if the Board's jurisdiction over such issyes were ex-

clisive, rah the mandates of the Acf of most of their force,

To the extent. th: it it may withhold ce iicalion fromi ani

tissisted repre senting organization, the Board’s processe= .

offer, at best.an extremely limited remedy for such conduct

an order refusing to hold an ection. But it can issue

nove of the remedies traditionally utilized to eliminate the

continuing etfects of interference, assitance and coercion.

; ‘

Decisions relied on by ithe Courts below for the propo-

sition that 2°" °° the tadministrative remedy” before the

NMib te texelpsive are ¢ ompletely nay) posite to an action

in which relief from interference, assistagice and coercion is

sought. In General Cammittee ©. M-K-T-Ry. Co., 3200,

eye

3223 (1943), there was no‘issue relating to influence, coercion

_or assistance affecting the selection by employees of their

representatives. Moreover, that was uot au action secking

relief from steh conduet. Involved j ul that case Was a juris-

43,

dictional dispute. be ‘tween two railroad Brotherhoods, each:

of which claimed that it alone was’entitled to bargain with

the carrier concerning the rules, rates of pay, and. working

conditions coyering a particular job classification. This

Court found that dispute to be one for the National Media-

tion Board and, in the course of its opinion, stated:

collective barggining agents for their respective

crafts and are acknowledged as such. Their author

Ren rs. cog ‘and the Firemen are the

~ . ity setoact tenot challenged. Nori it apparent how

the majority rile provision of 4 2, Fourth is invelved

here, Utstates that oo + ar

‘The majority of any craft or clas= of employees

shall have the right to determine whe shall be thes

representative of the craft or class for the purposes

of. this Aét.*

But concededly the Engineers represent a major:

itv of the craft of engineers and the Firemen a mayer

~? itv of the firemen at crart, The tore ce ag of majority

representation is hot chatle nce * (S201 So at 353

Similarly, the other decisions relied son below for the

finding that the federal courts Jack jurisdiction over the

cubjectanatter of this action, PUaht Evaimeers Luticl Assit.

v. Eastern Air Lines, Inc.. 311 F. 24 745 (2d Cir. 1968), also y

involved a union's claim to jurisdjetion over a particular

work assignment, and waz not conece srhed. with isstes of i-

fluenee, assistance and coe re ion affec ting. the selection of

representative. There, plaintiff! sought an injunction re

(uring the carrier to bargain exclusively with it concerning

fhe position of pilot engineers, and restraining that carrier -

from bargaining with any other organization conce ring

the rules, rates of pay and working conditions applicable to

that category of employees. Squarely prese ted was the

question whether the position of ‘pilot engineer” was ‘part -

of the eraft or class of flight engineers. The resolution of

Committers v. Southern Pacific Co., 220 U0.

that issue, involving the grouping of employees in a par-

ticular job category for purposes of representation, is a

matter expressly reserved te the Board under Section 2,

Ninth of the Act. The {‘ourt refused to decide that question,

tating that jurisdiction to do so was vested exclusively in

the National Mediation Board. In the course of its Gpinion,

the ourt cited the M-A-T case and the decision in General .

S. B88 (1945) -

where this ¢ ‘ourt de fined the M- K- T type of jurisdictional

adlispute as one which

9 © * paises the question whether on@collective

bargaining wgent or the other is the proper repre-

sentative for the presentation of certain claims ty the

employer. It involves a determination of the pout

where the exclusive jurisdic tion of one ¢ raft ends and

where the authority of another eraft begins. For the

reasons stated in ourlopinions in the Wisscurt

Kansas-Tesas RB. Co. case aed in Sucitehmen’s case,

we believe that Congress left the so-called jurisdic -

tional controversies tn tween Unions fo AECNCIES OF

tribunals othtr than the courts° S20 US. ate 44.

Accordingly, neither the V-A-7 case. Wor the Euste rH

Air Lines case stands for the propos ‘tion that effective re-

lief from infldence. coercion and assistance affecting em:

ployees in their right to select representatives of their own

chéosing mav not be fashioned by the federal court-. To

read these cases as precedent for the de fixion below rs te

destray the care fully constructed framework for enfore

ment of the mandates of the Railway Labor Act.

During the pe riod siiladjotel dy prior to the commence:

tent of this action, it is evident that American waz making

a bargain with a committee not authorized by the employees

Ww hiacgain. . American and the committee hoped to find 2

party willing te consummate this bargain. ALPA sought

of the fede ral court an order requiring the company, inate "ad,

to deal with it, the incumbent, “The Court below toural that

it had me jurisdiction to issue such an order.

During the period efter this action had been commenced,

bout prior to the initiation of proce edd ns before the National

Mediation Board, ALP A -onght an Corder of the federal

combs directing the company te cease dealing with the un

authorized O'Connell Committee. The Court below ruled

that at had ne jurisdiction for that purpose,

Purim our preh dene Vout this ac tien, ane after Mili dd had

Joe Hitioned the _ National Medjation Board, at a time wien. its

View of the Court below, a substantial represe itaatoan elis-

pute requiring the intervention of the Mediation Bourd

plainly existed, ALBA sought au erder of the federat court

enjorning the company’s dealing with a vival until the

reselntion of this substantial representation dispute. Ns

te this. the federal court alse beld it-qlf tosbe wv itheut juris

clietioni. . “.

Draring the penderey of this action. and after: election

pioeemding= before the National Meccbisatison Pocaared triad beeen:

staved by the federal court perdi the determination’ 1

Qchare ~of the Railwav J uiaboens evel Vicolastientins. thre ccenspoat \

- and the rival organization coneluded an agreement, pet

With-taneding the pemdeney, wholly unresolved, of the ray al*~

the federal conart vespurncead te ALP NCA ap plieatic

mewn application te fee Board for ati election. Pere dea

holdine that it had the jurisdietion fo etgern the eons amitias

e +,

Tien of that ogreement. .

‘Thy none of these situations does the Mediation Board

have power to take effective refiedial action even ib it wer

eof the view that it ha- jurisdiction tor «be “al with assistanes,

copecioay and influence prior to’ the actual conduct of thy:

sleetiagi. ‘

POINT II

_ By failing to determine that the respondents vio-

lated positive mandates of the Railway Labor Act and

that an effective remedy should be provided for such -

violations, the Courts below departed from funda-

mental ‘principles of law and have set a precedent for

. the violation of statutory bin aces of employees with im-

punity.

When presented with conflicting ¢laims from two rival

representing organizations, each claiming to represent the -

majority of its employees, an employer must remain neutral

until the répresentation questiomhas been finally determfied

by the appropriate statutory procedures. This rule has

* been. established and adhered to by the National Labor

Relations Board in cases raising issues identical te those

presented here,

Towa Beet Packers, Inc, 144 NLRB No. 64 (Sept.

17, 1963) ; ey

Yiduest Pipina avd Supply. Co... 63 NLRB 1060

(1945): Z

Novak Leaaging Compania, 119 NLRB‘1573 (1958):

Scherrer anil Darisson Leaging (o.. 119 NLRB

1587 (1958).

While the foregoing principle of the law ef Jabor relations

‘scomeedk well established and not open to question, the de-

cision. below casts doubt upon the applicability of this,

principle fo cases drising under the Railway Labor Act.

The failure of an employer.t6 ‘remain wholly neutral in

the face of rival representation claims constitutes unlawful

of the two rivals confers unwarranted prestige on the as-

4 47

sisted rival, encourages membership in that organization,

and discourages membership in the other. Accordingly,

such conduct has, up to now, heen found to be interference,

coercion and re straint of employe es in the’ exercise of their

right to selecterepresentatives of their own choosing.

Virginian fed Co, v. System Federation 3 No. 40,

B00 UL S2515 (1987 -y

NLRB vy. “e nusyleanitt Gre uhound Lines, 303 U.

261 (1938);

‘TAM v. NLRE.3ILULS. 72 (1940):

NLRB v. Link Belf Co... 301 U.S. 584 61951);

-YLRB Vv, Somerset Shoe Co., 111 F.2d 681 (1st.

(ir. 1940); °

NLRB vy. Clark Bros. Co. Inc., 163 F. 2d 373 (2d °

» Cir..1946); .

NLRB vy. Marcas, Truckina Co., 286 F.2d 583 (2d

* Cir. 1961):

NLRB v. John Enalh horn d Sous, 4 F. od i 3)

(3d Cir. 1942); |

NLEB vy. Stowe Sprnnina Co.. 165 F. 2d 609 (4th

Cir. 1946); . ¢ =

NLRB vt Steséart, 207 F) 2d 8 Oth Cir. 1953);

Ferro-Miloys Corp, 8. NIRB, 213 F. 2d 646 (6th

’ Cir. 1954); ;

NLRB v. Kearney & Trecker Corp.. 237 F. 24 421

; (7th Cir. 1956);

Elastic Stop-Nut Carp. v. NLRB, 142 F.2d 374

(Sth Cir. 1944); : a

NLRB v. Knickerh, cher Plastic, 218 F. 2d 917 (otb

ir. 1955): Se ee

Local 455 v. NLRB, 28s F. 22 168 (D.C. Cir. 1961);

. * Jowa Beef Packers Inc., supra:

Matter of Pan American Airways Inc., 1 Det rmi-

nations of Craft or Class 381, 386.

- . ‘ 4 7 }

No distinction can properly be drawn between the duty

tO. remain neutral under the National Labor Relations Act

and fhe corresponding duty under the Railway Labor Act.

Section 7 of the former, providing in part that:

* = Employees shall have the right to self-organ-

ization, to torm, join or assist labor. organizations,

te bargain collectively through representatives of

their own choosing * * 7""

is the equivalent of Seetion 2. Fourth, of the Railway

Labor Net, which provides in relevant piart:

Employees shall have the right or organize

and bargain collectively through’ representatives of

their own choosing *

Recognizing the identity of purpose anil, substantially. 0

lengcnage which i shared by the two statutes, this © ourt,

m NLRB vo Pennsaliania.4 rrenbound Symes We U.S 261-

(1938), stated: | ; ~~ ,

“Congress; ip enaeting the National Labor Rela

trons Aet, had in mind the experience in the admin

istration of the Railway Labor Aet, and declared

that the former was ‘an amplification and further,

clarification of the principles" of the latter. Report

ot the House Committee on Labor H.R. 1147, 74th

Cong., Ist Sess. p. 3. Tt had before it the Railwas

‘Clerks case [Texas & NO. R. Co. v. Brotherhood of

Ratiway & Steamship Clerks, 281 U.S. D486 which

hac emphasized the importance of union recogni

tion in securing collective bargaining, Report of the

Senate Committee on Edneation and Labor, S. Rep

73, d4th Cong, Ist Sess. p. 17, and there were then

avilajle data showing that onee- ari emplover he-

conterfed recognition on a partienlar organization

it has a marked advantage over any other in securing

the adherenee of emplovees, atid henee in preventing

the ~-cognition of any other. The National Labor

Kelations Act continued and’ amplified the polies

of the Raftiwey Labor Aci by its declaration in Sec

tion 7, and by providing generally in Seetion & that

4° ' @

any interference in. the exercise of the rights guaran-

teed by Section 7 and specifically the domination or

interference with the formation or administration of

» any labor organization were unfair labor practices. *"

(302 U. S. ut 266-67)

In January, 1963, when American bégan its negotiations

with the O'Connell Committee over ALP A's protest, Ameri.

. . “4 ° - ° . .

cal Was engegineg lil a refusal to bargain with the imeum-

bent refresentative at a time when no real doubt as to

ALPA's representative status was possible. Even if the °

O'Connell Committee was then a rival organization within

‘the meaning of the Midwest Piping doctrine,” O'Connell

hinrelf testified that.as of. January 1, 1965, neither he, his

committee, nor the pilots themselves were claiming that

ALPA‘~ representative status had been te viinated If

any gentine doubt as to ALPA‘s representative, status was

in fact present, then a feal question ef representation, suf-

ficient to require American to remain neutral and te refrain

from dealing with any group, wax raised.” Tf no such ques

tion Was then presented, American should have dealt: only

with ALPA.

*“Sce Cabot Carbon Companys ¥ NLRI. 25 F 2d 281. 28% «Sat

Cir? 1958) atid see cases ested therem at page 280, Norte

** Both the MEC and the O'Connell Conumittee owed ther exist

ence to the ALPA Gonstitutyot: and Bylaws, which. @ tortion: set-

4 *

forth the condition. yidey which such existence might Ceontinitte

wher the status conferred by the ALP A Construtton and Bylaw

wa. terminated by operation of that Cotistitutien and Pyvlaws. \mer

can could not propetty be heard to say that such terminate we

meftectual, Certainly the Court below should not have -conclided -

that ALPS remamed! an unwillimg prmempal. bound by the act. of

a runaway, farthles> and disentranchrsed agent atter all the world hee’

been told that the agent's authors was terminated But even im

lanuary and February, 1403. a: the Gourse Of separate mepeotiation-

between American and the (Connell Committers. \mericatys nege

tiaturs note. still refer to the O'Connell Committee as “ALP A

* (Contunued.on page M7]

a”

The Court below, in its opinion, recognized that ; as of

January and. February, 1965, there was no representation

_disputé. The Distriet-Conrt also recognized that fact.*

This should have led to a finding that American's refusal

| Contintted from page 49} :

(see, og, Po App. 148a, 148d. 1481). Vet. those Same Compan

negotiators notes show that ALPA’s wire to American advising

- that carrier that the (Connell Committee was wholly without at

tyorty te negotiate. was read aloud at the negotiations on * Januars

1. 1963. ami that. on January 2 1903, Ruby ALBA'S President

“* 8°" asked Compan to open Joona tide’ negotiation. end

of Fel WHEW (Whitacre. Amefica’s Vice Pre sident + said

ie Kuby numated that O'Connell's Committee does not repre’

cent the marofity of AAL pilots.” eP. App. 148;)

Nor did the Court below properiy conclude that ALPA was bouad

to supply a substitute comimitter as pryot that it did not endorse

(YConpell’s actions, and that. by failing to supply stich a substitute

ALBA ts somehow beand liv tie conduct of (Connell < Committee

The Court tound that prior te January. 1963, O'Connell's Cormuttec

wa- clearls -tbordimate to “MLPA, but that after that date, such

subordination di appeared. It <aid” ; ‘

“Rather than refusing te deal wath “the union's bargaining

represemtativy and negotiating wath the emplovees directiy, a>

tee eriiplever did im Medo. © merican dealt for montis with ahe

vers group wath whieh ALP Ns Constitution and “ylaws and -

Pokies told rt te deal. and when ap imypxtsse developed throug:

VLE XS rettsal te gecept the cesults of the negotiation.

SLE was unable to suppiy a *ubstitute negotiatiug committe

that accorded terth pas: practice and its own Policy Manual *

* The District Court Stated ~

“These motions ask im substante that a preliminary sipuniction

istic directing the Company te bargam with ALP A as the ‘true

represcitateve *.300-L Sat S48) of its pilot emdlovees and

restramuig guy bargaminig a» te pilot» with any other group

er may have been fie situation when ie motions

is since April 240 1903. a proceeding) nas beer residing

betore NMPOO® determime whether ALPA or Allied © the true

fepresentative ot tht pilots * * *°) (App. 74a; emphasi. -

suppl reddy

*"Whate

were mad,

x @

to bargam with ALPA in those months was unlawful..

Instead, it. reached a wholly ar conclusion, stating:

“= * * even though we aceept appellant’. argu-

ment that, in the light of "§ 2 Second, Fourth and

Sixth, it is net fatal that ALPA never had been

certified so as to come within the precise comma:

of © 2 Ninth that the employer ‘treat with the rep-

wok Reo so cert ‘ied,’ the courts cannot >reperly —

require an employer to bargain with a previous dy

designated representative in the face of a substantia!

representation dispute requiring the intervention of

the Mediation Board under ¢ 2 Ninth—a development

which became an almost inevitable. prospect within

: few weeks after this ac ‘tion was brought on Mare h

1 and ery stallized into a certainty by fate April.’

(Appendix J4a)} .

The Midwest Piping doctrine, prohibit= the reeogmition

of one of two ritals whenever a genuine question af}

“sentation ts presented, But cre Court ween” oh

the presence of a representation dispute commencing no

earlier than Mareh (and-not yet resolved), reve rth: less

wave its blessine to the exeention and implementation of

an agreement by Allied and American in Julw, at a tine

When the courts had enjorred thee Mediation Board from

holding a representation eleetion, and following megotia

tiens, over ALPA‘s protest, between Américan, the O°Con

nell Commpittes and then Allied. poe

While a uniform defimition of *‘question of representa.

tion’ is diffientt of formulation. and a definition of that

term depends upon the faet> of each ease (NLEB v. North

Electrie 7. DF. 2d 37 f6th Gir, 161), it seems dif-

tieult to ders Una! wu question of representation, produced

by Amériean’s interference and assistance in support of

Alliad’s creators, was present on and after Mareh 21, 1965,

the date Allied was created Allied itselt indicated the

— =

presence of such a question on April 24, 1963, in MS ap- |

plication to the Mediation Board for an election, naming

itself and ALPA as ‘parties to a representation dispute.

(A copy of that- application is set forth at. Appendix 15a

Nga.) ALPAL as the incumbent re presentative of the af

fected employpes since 1939 had a substantial interest in-the

representation of such employees, sufficienif to raise, a real

question of representation threughout the period of time

material to this action (Air Master Corp», 142 NLRB No.

23 (April 23, 19635) ). In NLRB vy. Kearney &T re cher Corp.,

* F.2d 421 (7th Cir, M56), a question of representation

had been found to be present solely as a result of ‘twa

rival unions fighting bitterly for the position ef exelusive

bargaining representative. © * 9" In Norak Logaing’’o..

119: NLRB. 1573 (1958), ufider. ‘circumstances similar to

those present here, the Board found .

miniieaees o question concerning representation

* existed as a matter of law when on August 7, Dot

LW made its representation elaim upon the re

spondent, was recognized andeaccorded a contract —

_as exclusive bargalaing agent of respondeiit*’s em.

ployees.”’ (129 NLRB at 1074)

There, the employer had disregarded the incumbent's elaim

1» representative status and had insfead reeognized and -

. negotiated with a rival seeking to atta’n that status. The

Board tound a representation question to be plainly pre

sented.

Similarly, in Scherrer and Dirvissen Loagina Co.. 119

NERB SST (1S98), the Boiird held that when an emplover

is a

*** * confronted with conflicting claims from two

-rival labor organization-, each claiming to i cpresent

a oma jority of its employe edie we ! epnuinie

and valid question concerning repre sentation exist."

(11% NLRB at 1588)

— ALPA‘S status as incumbent represen ative, unchal-

ienged daring the preceding 24 yee ars, its (atus as-a labor

ciiae to nepronpatatie e status im ie nuary, 16 i, and Secs

after, makes necessary a finding/@ither (1) that no venuine

donbt as to ALPA’s status eral he raised, or (2) that a’

genuine question of representation was se ‘In

either case, American's négotiations over ALPA’s protest-

awith O'Connell's Comptittee, which later-became thy Allied

Pilots Association, were uniawtul. - -

. ys ° -

The employer’ breach of the obligation of strict neu —

trality in the face of .rival representation claims i+ not

excused by proof of good faith or of honest intention.”

oriment Workers ve NLRB, 366, U.S. 7] (1961).

*e. >

wen if good faith were a defense to unlawtul assistance,

inte¢ference and coercion, good faith was wot, as a matter,

oF law, present here. American recognized and commenced

negotiations with the ‘Connell Cor. anittees without requir

ing any evidence that that Committee was supported by

majority of the pilots. Indeed, there ix no indjegt#fon nit

American even requested a showmiy ot authorization card-

by O'Connell in January, 1965.” It is clear that ne signed

authorization cards in favor of O'Contiell’s Comuitter.

were in existence, much less tendered to American at that

time. 5

* The District Court reachedan opposite conclisios. it leh]

“The fact that the Company conmnued to deal with : e Negs

hating. Committee Was not mb my view any violation © faAhe -\ct

considering that the Company acted im vimnd faith. reasonably,

without any practical alternative. and without any atiti-tstot-

motivation ~ TAppendss 78a)

No authority for these ‘conclistons wits farnisked “by the Covrt

-ALPA has found no decision whichi the subjective consideratior

referre| tu by athe District Court were found to ft letemse bo

objective assistance and corgi

“ar ot lf

YD ; MH Ss. a

> The only justification offered for the commencement of

separate negotiations bet wok American and- the O'¢ ‘onnell

Committee in January, 1963, is. the ‘resolution’? of the -

American Airlines.Pilét Master Executive Council of Janu-

i ary 8-11, 1963. Asa vice president of American testified.

ue below, ommiell, in January, . \" m4

mm, ,

aay reiterated. this’ postition that: he repre-

sented the, majority of the pilots in the employ of

. a the company. He presented usawith some of. the

Mie ch MEC resolutions endgtying the Tesolutions of the

ee: Committee.2,

The resolution peienee te wa® adopted by the FEC

cat their meeting of January,s 11, 19€3, in w hich They viated

® part that: : 9

ei Joe

“?* * The AAL-MEC _apeakingy ae the entire

ee Se ‘AAL pilot group, goes on record as authorizing the

AAL Negotiating Committee to conclude a contract

ee cand further to advise AAL management that the

\AL pilots are agreeable ‘te implementation of said

anes cis or without formal approval of the

ALPA © "°° UAppendix l02a-b03a), ‘ -

Pt ry

Sincé even a showing of representation cards in January,

1963, would not have aitthorized American to enter into

separaie’ negotiations with the O°¢ ‘onnell -Committe#, the

heot strap resolution af the MEC, standing alone, and

a" egnceived and adopted by the same few individuals wha,

f then favored such separate negotiations with American,

certainly Re not provide sueh authority. As the Board

ee, stated 7 in NAMM Logging Company, 119 NURB 1573 (1958),

‘ * thef- ‘“* * Respondent could not assume to judge

for ‘itself upon a showing of authorization cards-.

whieh of the contending unions was the statutory™

; "representative of the employees. ** (119 NLRB at

coe : tot: »)

American, in Jarnary, 1963, made no attempt to as-

certain the degree of pilot support for the O°C ‘onnell C om-

mittee. ‘The ¢ ‘ompany. has admitted that O'C voynell tender-

ed nothing but the. resolution of his MEC in support of

his January request for: separate negotiations (P. App.

90). Its sole ¢oncern was. the immediate resumption of

negotiations with a committee known to be willing to make

a bargain favored by American. It-had no indication or

ax evidence the n, or indeed until 6ver six months later, that

> any of its pilots were in sympathy with O'Connell's Com-

mittee. By rushing hee idlong into such negotiations over

ALPA’s protest, American acted wholly without the good

faith which this Court has required of an employer: faced

with | the — of only a single union ina far less sensitive

situation.* eee : .

“Thi Garment Workers v. NERB, 366 08. 731 (1961), this

“Court set aside ane agreement negotiated a an employer

with a labor organization after it found that the employer

had not taken reasonable steps ‘to.verify the union’ s claim:

of majority support. Tn that ease, there was no rival to

. the ‘union which received the unhiwful recognition, since

only one inion: was aspiring to represental) ve ctatns,

Under such cireumstanees, recognition hy! “the employer of

that union would have been proper had the union produced

authgrization cards of a majority of the emplovees priot

to recognition and bargaining. Instead, however, both

— e .

*In fact, American very pelf- ‘consciously moved the District Court: :

in March for the appointntent ofa Special Master in arbelated attempt

to ascertain the fact whiclr it Hoped to use as support for its conduct

in January and February —whether its pilots supported the O'Conrell

Committee and the separate ‘ne gotiations. This motion was never

decided, since t the ‘District Court found that

; % * * the passage of time and the dispesition of the other

» motions have eliminated any necess.-y of-such relief to the Com-

pany.” | staal 82a) ;

é eo, 3G

the employer and the union sssuimed, without checking,

that the union represented a majority of the employees in

the unit. This Court disappreved of such an assumption,

stating: | aN a

‘If an employer takes reasonable steps to verify

union claims, themselves advanced only after-care--

ful. estimate—precisely what Bernhard—Altmann

_and petitioner failed,to do here_he ean readily as--

certain their validity’ and.obviate a Board election.

We fail to see any onerous burden invoived in re-

quiring responsible negotiators to he’ careful,~dx

cross-chegking, for example, well-analyzed employ er

records with:union listings or authorization cards."

~ ( 366 U.S. at 439-40)

‘Even if authorization cards had been supplied and eare-

fully cheeked against American’ s payroll records,-and even

if it is also assumed that they hail sqme materiality in a”

situation in Ww hich rival unions claimed representative

status, such ecards are generally: held’to be little indication -

of the wishes of employees, and that,-under such circum-.

stances, a secret ballot election is the only reliable meats:

*-.s

of ascertaining the t true representative,

- VERB vy. Sitift & '9.,.294 F.2d 285 (3d Cir. 1961) ;

Novak Logging Company, 119 NLRB 1573 41958) ;

Midwest Piping and Suppiy Co., 63 SLB 1060

« . * £3945). ; ie

In this case, no authorization ecards were secured until

April, 1963, when Allied applied to the National Media-

-tion Board for ‘a representation election, over four months

after American's refusal to bargain with ALPA. Such

cards were produced after the March 15 agreement had

been circulated among the pilots, and after it was made

known to them that the-selection of Allied as their repre-

: , ot

. : : : xs? f..

sentative was,the condition precedent to the implementa-

tion of that dgreement. 7 |

Thus, aufhorization’ cards came only’after mos of the

conduet. complained of had oceurred, This shoe d not

mistakenly be used to obseure. the fact\that the effects of

the January violations continued during the period of the

solicitation of cards and thereafter® “The cards were the

product of solicitation by mail and®such other methods as

Allied may have, employed. This Court may take judicial

notice of the: faet that any empfoyee Whose name appears ou

a published seniority list_and who fail» to execrte or return

‘an authorization eard/luring such a solicitation maf, in

ereater or Iesser degree, feel intimidated. . This Court may

likewise take judikjal notice of the fact that thé simplest

way for many is to sign when a signature is solicited from

an open list, even if this involves authorization, revocation,

or. authorization for more than one organization. ‘Indeed, -

the National Mediation Board, dealing with similjr situa-

tions arising under the Raifway. Labor Act, has stated:

‘ \ .

“In the investigation of representation disputes,

‘it is not uncommon to encounter situations where

incumbent organizations ciretlarize employees and

seeure signatures on ferme which state that the

employee’ revokes his authorization ‘in support of

. ‘the applicant organization.

qe + ' * * “+

“The. presence” of authorizations and counter

authorizations is no reliable indication of the true

desires of employees for representation. It is only

when. the employee is given an opportunity to vote

by secret ballot that his true desires are expressed

and often the results of such elections are quite

different than indicated by the preelection buildup.”

Sirteenth Annual Report, at pp. 19-20.

Authorization cards are, therefore, unreliable iridica-

tions of the wishes of employees in a representation dispute

Fs > ye a

Las

involving rival unions. They are legal'y insufficient to

justify -an employer's departure from his duty of strict.

neutrality under ugh circumstances. And theyoare wholly.

irrelevant when productd at some: later time, purporting

to be retroactive justification for antecedent: recognition.

Garme nt Workers vi NLRB, 366 U. S. 731 (1961).

In the Garment Worke FS decision, this Court rejected

the union‘s showing - ot majority support as of: the date

that it*signed the contract with the employ er, since there

had been no showing of majority support for the union

as of the date when it first received the employer?’s recog-

nition. This Court found that the affected employees had

been deprived, as a result of such premature recognition; of

their right to select representatives of their own choosing,

and it said:

It is, therefore, of no consequence that

Petitioner may have acquired by October 10° the

necessary majority if, during the interim, it was

acting unlawfully. Indeed, . sich aequisition of ;

miyjority status. itself might indicate that the recogni-

tion secured by the August 30 agreement afforded

petitioner a dece ‘ptive cloak of:authority with whic h

to‘persuasively elicit additional employee support.”

(Sb6 U. S. ato 736) ; .

In contrast, the Court below, in a_ situation even more

deserving of a remedy than that presented in the Garment

Workers ease, reached an opposite con¢lusion, finding‘that

the authorization cards tendered to American by Allied .

on July 9 were indeed material and relevartt. Jt stated:

American recognized -[i.e.- executed the agree-

ment previously negotiated] Allied only when pos-

sessed of substantial evidence that Allied represented

an overwhelming proportion of its pilots and w hen

threatened with a strike if it refused recognition.”’

Appeéndix 18a)

_ it

It is not necessary; for a finding of unlawful, assistance

by an employer faced with rival union claims, to show that

the employer initiated the organization of & company union.

International Association of Machinists ve NLRB,

311 U.S. 72 (1940), a

| bit et Rs’ ;

* But there is evidetice that, between January and March,

American did plant the seed for formation of a. rival repre- , °

senting organization, and that the fruit of that seed was the |

Allied Pilots Association, an organization ervated by the

O’Connell Committee over two months after Anierican

commenced separate negotiations with it in January, 1963.

At least ‘eight or tet times.’ Amerigan’s vice president”

advised the employees that if ALPA did not: accept the .

contract then being negotiated by American and the Q’Con-

pais Committee,

_¥** * the company couldn't do business with any :

group, unless they were represented by a formal and

rexponsible organization.”

_ American's motive is exposed by the conduct of its Vice

American's employees in Los Angete=+# in—Februarx,1963, ___-_

made a lengthy statement, a substantial portion of which.

was admitted by him before thy District Court. Whitacre

told these employees that is i

“* * * he personelly thinks ALPA will take the

deal; if they don’t, ‘Nick’ has a‘ problem; if 6%

ot the pilots ratify it, the Company will implement

it: they must have an organization to do business

with: it must include pilots and flight engineers tn

one‘unit; if this group of pilots formed a separate

organization. and the flight engineers: joined therg,

and they rented an office near the Company’s office,

with some clerical help there, and hired a reputable

attorney, they'd be better off; ALPA would probably

: .

OUR : r

usk-them to return in a couple of years; We is not

- holding anybody to-it; he deesn’ t care if we throw

the initialed document awpy; we're negotiating the

gree twdk, not the red hook ; ; all of this is not Amer-

icati's proposal; *Nick “said if they agreed to it, he'd

‘deliver’ the engineers; so far as ‘he’s concerned, he

has a deal with the pilots’ agreement! he intends to

retire but, before he does, he w anted to do soniething

about that outfit ing ‘hicago [AL P. A}. CP. App. 142)

The District (‘ourt diamiseed W Ledeen te statements as

‘imsigniticant’’ (Appendix 7TSa), holding that they were

-. addressed to flight engineers, not pilots, and were there-

fore immaterial to Petitioner’s claim. But thé District

Court found that American unlawfully refused to bargain

with the LA ( ‘hapter, FETA, stating that

“From at least as éarly as January 31, 1963 to

July 11, 1963, the Cofmpany refpsed to bargain col-

- lectively with the ( ‘hapter and until .at least as late

as: March 15, 1963, the Company instead hargained

_colleetively in respect of flight engineers only with

a committee, of which O'Connell was Chairman, and

‘which the Company claimed represented: the flight

engineers."? (Appendix 79a)

The effects: of inte rferetice with employee represe ntation

rights cannot _preperty he confined te,a narrow category

of employ ees, American's pilots were, as a mattér of law,

exposed to the pressures of such. unlawful conduet, and a

remedy should have been provided. See United’ States

Rubber Co., 86 NLRB 3 (194). ». * ihe

A curious ‘sequence of ev ents Gécurred here. Collective

bargaining preeeded the identification and selection, by the

. hargaine rs, of the employees’ representafive, But the

: Railway- Labor—Act-contemplates the selection of a repre-

sentative first, followed by. éalkcstive bargaining betwéen |

, that representative and the employer. Joseph, B. Eastman,

Federal Coordinator of Transportation, testified at hear-

‘ii

. *

ings be tore the House Committee 6a ake rstate and F orpign

Commerce, 73d Cong., 2d Sess. (1934), at pa zie o7, as _

lows: , at oo . :

“Eastman: * * * collective bargaining requires

some form of organization, That is what the word

— *eollective’smeans, ‘it seems to me. I do not see how

. a gyoup of individuals could do a thing collec tively . 64

without some manner of organization. {

- Mr. Huddleston: Does that..imply then that

they should be members of an organization!

Eastman; Well, I would think that they would

have to have ag organization of some sort before

they could act lectively.”’

In the District Court, O'Connell rade” a most signific aunt

statement in the course of his testimony: . |

‘*The Company lias committed themselves toothe

fact that they have an agreed-to amended basic

working greement with related documents that the Vv:

will honor and put into effect at such time as there

can be produced a’ person with the satisfactory

credentials to sign the do ments.”

Such a procedure unlawfully reverses the established col-

lective bargaining - process. Its apparent objective is to

_. produce a an agreement Ww hich miaiv—Be-trsed, as it: was used

~~ cheregby American and O'C omnell, to evoke the support of

: Ta the affec sted employees for thes assisted representing rere.

The transformation of the O*Connell Committee igto

the AHied Pilots Association on Mareh 21, 1963, did not

toll the continuing violations of the Act. Allied, far from

a stranger to the participants in the unlawful negotiations,

is, Of course, their creature. ‘The taint o of ‘assistance and-eo-——

_ereion—eatrieTs over into suceessor Organizations where

there is no absolute eleay age or clear deline ation be tweens

the assisted group and its successor:

“* * * where a labor organization appears to be

the successor to an earlier company dominated union,

n“

the Board, and the courts have consistently held

that the.later organization inherits the illegality of

* the earlier one and‘that the effeet of company dom-

ination and support continues unless the employer,

before the formation of the new organization,’ has

- unequivocally and_ publicly disavowed .and disestab--

lished the earlier illegal union and has assured the.

employees of their freedom from further employ er,

interference ° A

Si. c teenth Annual Re port of the Nationa! Labor.

Relations Board, 155-59 (1951).

American obviously regards the contract - negotiated —

pilot Support was produced for fhe Allied Pilots Associa-

tion. The use for which the March 15 agreement, was

intended wars’ neatly encapsulated by American's . View

President, ‘who testified that he’ advised ALPA’s repre-

sentatives 6.1 January 30, 1963, that, in view of the improve-

ments in working: conditions which would be provided in

that agreement, the O'Connell Committee. would recei}e

almost unanimous support from the pilot group, .thodgh

>: O'Connell and’ his Committee had theretotore received

little support from: the pilots. (See pages 23- 24. supra.)

But an einployer should not be. permitted to enjoy ‘the

fruits of chis unlawful ‘conduct with _imprmity. This Court

has. recognised. =— . oe 2

~ * * * once an employ er has conferred recognition

on aw particilar organization it bas a marked advan-

tage ever any other in securing tke adherence’ of

employees, and hence in preventing the reéognition

of any other.’ - ot

NLRB vy. Pennsylranta Greyhound Lanes, Inc., 303

U.S. 261, 267 (1938), |

To the same éffeet, see Garment Workers v. NLRB, supra:

= P iar

e . . ?

2» by

TT aul

In this action, American has sought to justify its conduct

arguing that as a-result of the authorization: cards

-produeed by Allied, ALPA has been shown té have. lost’ its

H former status as representative of the. majority of. ‘the -

pilots. But whatever loss of support has been suffered by

ALPA ° is a direet result of American's interference, as-

. sistance and coercion. “National Kicorice Co. v. NLRB

300 TS.350 (1940), | Baie = ah

Even if each of the affected employees were now shown ,

to be in support of Allied, the arrangements between Ameri” € :

ean and Allied would nevertheless he unlawful. since ig

support would be a direct, fesult of the agreement unlaye«

fully negetiated between American and Allied’ predeces-

“sor. Such support would not affect the need for an/effec

Jive vemeds to eliminate the continuing effects of the inter.

feyence, coercion and assistance. Garment Workers \.

NLRB, sispra. The Seeond (‘ireuit recognized in a recent

is : /

—— decision that: ae : as a :

Qo At the first sight it seems, Andeed, a faY ery

from the objectives of the Act Ahat we should -hold

“Gt an unfair labor practice for an employer ‘to joi ~

al uneoerced majority of it~employees in an action,

. they both want. when th faniy mjured person~ are

the Yuinority and an spcanization whose. position

depeme fon a suffragyzt av longer poss@s<es.7" +

ésies ¥3 cn nti Ae coe v3

“But. the Court contanued, Vv :

ss “o* * the underlying ‘purpose of thix statute is

‘ industrial peaee and * * * to allow empioyers to rely

-. + on employees” rights in-refuytng to bargain with the

» formally désighated union 4s not conducive to that

~ * end, it 1s inimical to it.” avn

3 ‘ 4 e ~

* The extent of pilet support for either ALPA or Alhed dufing

the period goveted by this dispute has never, to date, been ascertained =.

- Gy any objective or acceptable measurement ‘<2 a

Pie

pe >

NERB v. Marcus Trucking Co., 286 F, 2d 583, 593.

a =,» (9 Cie. GR). tC

‘The principles applied in the Marcus case should also have |

* been applied in this ease;where the employer acted without

xood faith, and where the majority support ‘eldimed by -

. Allied is, if it exists, the support of a coerced majority, com-

prised, of empliyees acting under the influenve-of_their om-

ployer’s plain indication of a preference as hetween rival

* d . * ft) - ? ’ ° °

unions. The objective of interference, coarcion and re-

straint. by an employer is to produce a collective state of

mind in a group of employees which causes them to favor

one of’two rival labor, organizations. Thus’ it is wholly~

: = ° rf * ef ‘ é °

‘ no’ interference -was' practiced be- —

cireulag to argue tha

assisted union. aft |

The coerced state of mind is conclusively presumed

from the fact of assistance, without more. Where an

employer confers premature and unlawful recognition upon

oné of two rival labor organizations, nfajority support for

the organization which reéeived the benefit. of, such as-

sistance is presumed to be the support of a coerced majority. .

Scherrer-& DavissoLoqging Co., 119 NLRB (1587 (1958).

There, the Board stated ;, :

i a

_ “By exeeuting-of a contract with the LSW in

the face of thé conflicting claim of’*the LWA which

- raised a question concerning represengation, the Re-

spondent breached its neutrality, accorded the LSW

unwarranted prestige, eneceuraged membership there-

. in, discouraged membership in IWA and thereby

. Yehdered unlawful assistance to the’ LSW. The re-

'.. spondent has. thus interfered with, restrained and

coerced its emplovees in the exercise of rights guar-

ante@l in Section 7 of the Act.’* (119 NLRB at

1588-89)

“&

‘ yee *

: Proof of the effects ‘of the empldyer’s assistaiiee and .

coeréion-are ‘not necessarily dependent ‘upon outward man:

ifestations of restraint by the employer, even though such

-e manifestations are apparent here. (NLRB vy. Marcus

Trucking Co., 286 F.2d 583 (24 Cir, 1961) ). The-existence

of such unlawful ¢ffects are presimed from reasonable

factual indications. This Court, in NLRB v, Link Belt Co.,

311_U..3, 584 (1941), stated : ne haere .

“nf

: “Tt would indeed be a rare case where the finders

of fact could probe the precise factors of me@ivation. -

which underlay each employee's choice. Normally,

athe: cOnclusion that their choice was restrained by

the employer’s interference’ mu&t of necessity be.

based on the existence of conditions or circumstances

‘ which the “employer created or for which he was _

» fairly responsible ail a result of which it may

reasonably be inferreed: that the emplovees. did not

have that complete and unfettered freedom of choieé

which the Act contemplates.’? (311 U.S. at 58s)

_ And this Court/has found that oe

‘We are dealing here * * * with a clear legisla-

- tive policy to free the collective bargaining process

from all taint of an employer's compulsion, domina-

tion or influence: Tlie existence of * * 7 interfhrence

must be determined by careful serutiny of all the

- factors, often subtle, which restrained the employee's

‘choice and for which the employer may fairly be said.-

tobe responsible.” ee es

International Association of Machinists v. NLRB;

311 U.S. 72, 80. (1940). |

co 7 ae

The rémedy for unlawful &sistance, interference and

coercion must effectively ‘and ecolmpletely dissipate the up-

lawful conduct. ‘In Taternationa! Association of Mach-

‘inistsv. NLRB, 311-0. 5. 72 (1940), ‘this Court stated:

4 ““* * * Tt cannot be assumed that an unremedied

refusal of an employer to bargain collectively with

+ .

ich Ae SN ie

‘an appropriate labor organization has no effect -on

the development .of collective bargaining. See Na-

tignfl Labor Relations Board '‘v. Pacific Greyhound '

Lites, Inc., 303 U.S. 272, 275. Nor i is the conclusion -

unjustified that unless the effect of the unfair labor

practices is confpletely dissipated; the employees , .

mivht ‘still‘be.subject to improper restragmts and not

have the complete freedom of ¢heice which the ‘Act

contemplates. ” (3110.8. 12, 82)

Indeed, an order directing the employ er to bargain with the 72.

incumbent has been held to be the only effective remedy

for-an earlier unjustified refusal. to deal with the ineumbent.

In F ranks Bros. . NLRB, 324 E. S. 702 (1944), this Court ”

’. found appropriate a remedy ; « .

66% & *&

which requires that an employer bargai:

» exclusively. with the particular union which’ repre-.

sented a majority of the employeeseat the time of

the wrongful. refusal to bargain despite that Snion’s,

subsequent failure to retain its majority. The Board -

might well think that, were it not.to-adopt this type

of remedy, but instead order elections upon every

_elaim that a shift in union membership had_occurreds

during ‘proceedings occasioned by an employer’ <"

wrongful refusal to bargain, recalcitrant émplayers ~

‘might be able by continued opposition to union mem.

bership indefinkely to postpone performance of their

statutory obligation. In the Board’s view,. pro-

eedural detaysnecessary fairly to determine charges

of unfair Jabor practices might in this way be made

the occasion for further procedural delays in con-

nection with repeated requests for elections, thus —

providing saad ers a chance to profit from a stub-

horn réfugal to abide by the’ law.” That‘the Board

Was within its statutery a whority in adopting, the

remedy whieh it has adopted to foreclose the 4 pro-

e babilit of such frv gerne of the Act seems too

plain for anything t statement.”’. (821 U.S, at

Sta 05) ; oe

It approv ed the Boards determination that” Siren PI

“A * Hie only means by whic +h a refusal-to bar

_ gain can be remedied is an- affirmative order requit

“so + dng the employer to. bargain with the Union? whieh

Pips) "represented a majority at the time the qintair ‘Tabor

ePrictice Was eqmmitted.”” (emphasis supplied) (32

“U.S, at 703-04) :

Though the decision Of the Court: beldw: is based fipon

“ats view that the federal courts Jack jurisdiction ever the

~ eomplaint “here, the % ‘ourt sneverthefess indicated ‘that if:

it did possess jurisdiction, it wonk 1 not favor ALPASs posi -

tion on the merits. ‘In its discussion of “the “merits. the

Court magle No. reference to generally ‘aceopted aathority ,

in this area, and it referred’ only to decisions which are

neither ronda eit? of the majority view nor applicable

eto the ciréumstiwuces of this case.

. Indeed, the ‘decision upon Which ‘the ‘Comet: we Lav ap ™

= pears'to have placed its chief reliance, NLRB v fudian .

viewed with ch sapproval by the National Labor Relations

Board (see Novak Logaina Co., 118 NLRB 1578 (195 iS):

Sche reve dt Davisson Loqaing (0. ALY NI, R yy I ST (us mds)

The ‘Indianapolis ease has been shown, by a reeent deci ions,

* of the Seventh Cireuit, the “Same Court. which decided it,

. to be ing 2 img here. “Se o St, Louis Indep ndent Pacl

ing Co. ¥ NLRB, 291 F.2d 703 (7th Cir, WGI).

In the Indianapolis case, the employer cesses zt

2, newly formed independent union and refused td ce ;

‘negotiations commenced With the incumbe ntvafter the in:

bag produced a petition, signed by more than ae .

f the employees requesting such. negotiations, and after «

| ‘such signatures had been checked against payroll ‘records

_ and found to be authentic. The employer and the indeyfend- «+ °

od Hs

_ cht union thereafter pearer ore an agreement which, aftér

ratific ation by the employees, was exdented and placed. in

effe el. .

The ‘incumbent unmon “filed. ‘an anfhie ‘labor practice

charge with the National Labor Relations Board, alleging

assistance and interference by the employer er, and the Board

found merit to the charge. It ordered the employes, to

refrain from recognizing the indepe dent and from giving

“effect fo the agreement with it. The Seventh Cirenit re-

fused to enforee the Board's order, , how ever, stating that:

silylation The Act forbids interference by an em-

ployer with the rights of his employees to bargain.

collectively, ‘and, for that’ purpose, to select their

own. bargaining representative. When two unions

are vieing for majority support of his employees,

an employer must, of course,.maintain a position of

_ strict neutrality. He must refrain from any action

which téngs to give either an advantage over its

rival; he may do nothing which tends to coerce his

employees to gin or to refrain from joining a partie.

ecognition of one ¢ompetitor as-ar-

ular jnion.

gaining agent during this contest poyied- gtsent

proof of majority support, is a proscribed act. ‘tCita-

tions omitted.)

“The Act does not require, heweer, that this”

-* neutrality continue until. the last dissident voice is

stilled. Indeed, in keeping with the purpose of the

Act, hagmonious employer-employee relations re-

quire that the instability inherent in a contest end

when one contestant is able to muster majority sup-

port, Although the prize of recognition must not be

employed coércively to influence the employees in

making their ‘decision, onee indisputable proof of

majority choice is presented te the employer, the

Act imposes on him a duty to award recognition to

the agent so chosen hy his employees. (Citations

omitted )

‘That deéision has recently “been explained by the

Pee oo

ar there has been, an .uninfluenced expression of

me wi Me pak. rye “ . ~ ; ats _s 2

majority’ will; it matters not, how that will be .ex-

pressed. Although the result of a secret election

may well be the most convincing means of expression,

the election medium is ‘by no means exclusive.’}

(210 F. 2d ‘ag 503-04)

Seventh Cireuit.: In St. Louis Independent Packing Co, v.

NLRB, POL F.2d 700 (7th Cir, 1961), that Court stated:

‘We have had occasion to point wut that where.

a real question of.representation exists an employer's

duty to observe strict neutrality in matters relating

to the employees’ choice of bargaining representa-

tive precludes his bargaining with one of the rival

labor organizations. Thus, in N. L. R. B. v..Pndian-

apolis Newspapers, Inec., 210, F. 2d 501, 508, * * *

we found no untayr labor practice because of absence

of a real question of representation at the fime the

employer: recognized one, 6f the rivals * * 7.) (291.

i. 2d at 704)

Ifthe Indianapolis principle is not applicahle where

oo? *

* a real question of representation * ‘is raised,

then it should net have been applied to, this case hy the

Court below. or we have the agreement of that Court

P and ‘of the Allied: Pilots Association that a ‘*substantial

representation dispute requiring thes intervention of the

Mediation. Board’? was presented by Allied*s claim, even

if we pass Yor a moment Américan’s sankawtul conduct

tesnee.

hetween January and March, before Algjed came: into exis-

Moreover, there is a material distinction between.

Indianapolis, where the employer Uid not enter into negotia-

tions with the independent until it was presented with the

signatures of employees, found to be authentic after care-

ful \checking, and the instant case, where authorization

a! . . .

. ™ 70

cards came only after most of the conduct complained of

had occurred. Se pee

The Fudianapotis case Was, limited toa situation in which

no real question of representation ix presented by the other

decision chiefly relied upon by the Court below, District

30, Uitted Mine Workers v. NLRB, 234 F. 2d 565 (4th Cir.

1956)... There, evidence presented before negotiations were

commenced supported a conclusion that one of the twe rival

Wnions involved was almost wholly without support among

tle employees. The employer, before conferring recogni-

tion upon one of the rivals, ditiocd a card-cheek to be made

by a disinterested arbitrator who found that one of the

rivals was clearly supported by a majority. The Board

held that recognition under such circumstances constituted.

an unfair Jaber practice, under its Midwest Piping doctrine.

The Fourth Cirenit, refused to enforce the Board’s order,

however, finding the abseuce of areal question of represen: |

tution at the time of such reeperitien.’

The (only decision of this Court eited on this +yuestion

in the opinion below is Unite? Mine Workers vo. NLRB

351 UYS..62, 72 note 8 (1956). Tt was apparently cited only

for the contents of footnote, Ss, which states that ‘ta Board

election is not the only method hy whieh an emplowey may

satisfy himself as.to the unions and status."* -Thi-

principle i ‘is, ot course, not disputed in factual situations

to which it ts applicable. but it is ober: iously imap plicable

‘here.

The: only other authority cited by ‘the Court below for

~ the proposition that the” issties raised hy -ALPA are “with-

out substantial mérit is the Second Cireuit’s own previous

decision in NLRB vy, Superior Five proof Door & Sash Co.,

canes 41

989 F22d713 (2d Cir. 1961). That decision was referred —

to by the ¢ ‘ourt: ‘for the propos! ion that

to refuse, after the certification year,.to bargain

a union which he reasonably thinks to he the major-

ity, or to act unilaterally, is ‘that the ‘loss of majority

_Was not er to unfair labor practices of the

employer? * * %.7* (280 F, 2d at 719)

To-the extent that the Sup rior decision confliets with the

principle that the presence of a ye ‘al question of representa:

tion makes it unlawful for an employer to deal with either

of two riyvaly, that decision Is unsound, Bat if the Suporte

principle is applied to the fact~ of this vise as they existed

in January, at the time of American's earliest refusal to

bargain with ALP.A, the time of commencement of sara

uptiations with ‘the (Connell Con inittee. all ef. which

. urred more than six months hefore authariz; ition Gards

Were prese mtedéto American, that decision provides ne

ciereyernnioveret for the emplover’s conduct,

The Court ‘below made no reference to the Mid west

‘Pipind doctrine. to the decigion ot this Court in Grant

Workers ve NLRB; B66 UL S73 (161), ‘to the many

decis sions cited by Petitioner herein and be e In SUppert

(of the proposition that an employer Confronted by sub-

stantial € ‘laims of rival’ wnions Wust-remain’ strictly we tral

until the conflict has been resolved in the manner provided

by law, Nor did the Court mak eee to the authorities

holding that a rival represe nting group Sneh ‘as. Mlied

which aceepts recognition from an employer under such

cireumstanees* is’ equally guilty, with the employer, of

interference and coercion. See. e:d., Gaarme nt Workers v.

NLRB, suprasz see also Air Master Corp.. 142 NLRB oe

ay ( April 2 1963).

* Ov

CONCLUSION

A writ of certiorari should issue to review the deci-

sion of the United States Court - Appeals for the

Second Circuit.

Respectfully submitted,

SaMUEL J. COHEN,

Attorney for Petitioner,

Office and P. O. Address,

: 605 Third’ Avenue, *

oe jee New York, New York.

Henry WEIss,

Hersert A. Levy, ; ‘

of Counsel.

APPENDIX

Opinion of the United States Court of Appeals,

"No. 28417 (September{1671 963)

UN NITE D ST ATES COURT OF APPEALS

For THE SecoNp Civeure

Cal. No. 419—October Term, 1962

( Argued September 3, 1965 Deeided September, 16, 1963)

- Docket No. 28417

Cartes H. Repy, at President of the Arm Lise Pinors

ASSOCIATION, INTERNATION aL. and Aim Lise Pivots Asspcr

ATION, INTERNATIONAL, an unincerporate al association,

Appellants, ‘

yy.

ms AMERK an ArRLiNeEs, INc., ;

< . App Hee,

and

NICHOL ay O'Cox SELL, Ju. individually, and ‘as Chatman

of the Master Executive Couneil of the pilots in the

service of AMERICAN «AIRLINES, Isc c., and. the Negotlatina—

Committee -of sai pilots. consisting of Ricranp Lyons,

Roperr T. Ge Ba. JosEPH Garvey, Pac ATKINS and Nic Woe

Las J. O'CONNELL, Jn. ex officio, :

5 oF : " Additional Appellees,

Riedie: é

Crark, W ATE MAN: and Frirspiy, Cireut Judge. s.

Appe ‘val by plaintiffs from a judgment of the Sictrict

‘Court for the Southern District of New York. Inzer B.

Wyatt, Judge, dismissing thei’ complaint in can durline

labor dispute for Jack of jurisdiction over ‘the subject

matter. Affirmed.

. Opinion of the Unite d State s Court of A py als tor the

Second Circuit, No, 28417 4S¢ pte wher ii, 1663 5

Hexny Weiss (Cohen and Weiss), New Yor a @&

(Herbe ftA. Levy, ot C ounsel), for ‘Ap pellauts,

Ar THOR M. Wisenart, “Nev, York, N. Y. ites.

Spater, of Counsel), for Appellee American -

alirlines, : ;

Martix C. Senam, New York, N.Y. for Additions!

App Meer s.

Cart Banbury, Mowrox Hott&xper and Howanp EK,’

SHarino, Attorneys, Dept. of Justice, Wash-

ington,’ D. CL, fil A Brief Amicus Curiae on

hy halt of tiv National Me liation Board.

Friexpiy, Circuit Judge: : ; ge

This appeal again raises the problem us to the rolesof,

the courts—with- Teseetsto labor apetee Ms an industry

governed by the Railway Labor Act, 45 U. S.C. «151-188.

‘The Air-Line Pilots Association (AL “ a hafionw ide

union of airline pilots, « ndeavored in this action to protect

its historic status as bar waining representative of American

Airlines’ pilots, primarily by seeking injunctions that woub!

tnittee of Anierican pilots Which later became the nuchirs of

a new umon—from dealing with one another, and would

retjuire American to negotiate with ALPA instead. We

affirm the conclusion of the Distriet Court that ALPA made

no Case Warranting judicial intervention in this area. which.

-C ongress has so largely Committed to the National Media-

tiow Board.

“In view of Jidge Wratt’ ~ compre hensive statement of

the facts we shali limit ourselves to those we deem most

ae |

”

preve nt the defe melanits- American Qiul a negotiating esta

F, : -

ou oe

Opinion ot the Unite Ad oNSt: at sCaurt of A py als for thie

Second, Circuit, Now 2417 (September 16, 1465)

important. American Aivlines lust pilot contract before

the instafit dispute was made with the air line pilots im: its

service tas represented by the Arr Lise Pinots Association,

IxTeRNaTioNAL’’, Which, as the contract recited, ‘has shown

satisfactory proot to the Company of the fact that it repre:

senis more than a majority of the air line pilots of the :

Company."". The contract was to bee ‘ffective antil Judy 21,

1960, and was to renew itself annually” “thereafter unless

written notice of intended change was served, pursifant.to :

days prior to Jajy 21 in any year. dn March; 4 161 Go haee oe

can sent such a notice to the. rreside it of Ab TA, an XLPA

sent such a notice to-Ame ‘rican. \ .

To &ppreciate- the relationship) of the parties and the

source of the controversy, some understanding of ALPA‘s

“structure is requires. - The - basic Ainit is-a Local Comics!

composed, of the member pilotevof a sinele airline at an

operatiag’ pase. Ce rain offic of the Local Couneils -—

ssitute the airline's Master Exeentive Couneil (MEO); this

- handy is cs empowered 1 to make th final decision on ans

problem or prob lems of the me smite y= of th: it air Jgtie, exce 1

as provided leathe we in the Constitution and By-Laws.”

The Chairman M4 the ae as *tAn ex officio member of

the Nevotiating’ ¢ ‘ommmttee. * The Negotiating Committee

is not othersvise dese sribed in the Constitution and By-Laws.

but the ALPA Policy Manual savs that it shall be -ebected

by the MEC on each airline, and that it **shall have the

authority to Gonelnde at agreement subject to the Rov ;

sions of Article XVILI of the Coystitution and By-le@ge

which provides that confer encesanr negotiations to make

employment agree ments shall net ‘be initiated, earried on, :

1 Judge Wyatt's opinten also dealt with a. relate sispiute he'tween

‘American and the Flicht Engineers’ eInternational Assoctatson Th

is not before us. and we intimate mo views in its regard

Opiron of the Cited State s (-ourt ot Appr “als for thie

Second Circuit, No. aE bs (Se pte wher 6. -1065 5

or concluded. in the name of ALPA Without the prier

approval Of the. Executive Conunittee or the President,

and that ne sue ‘h digreement shall iBone effective unless.

signed = thes p re side ‘til. ‘some other offieer authorized

hy ohe 0 ALPACS central prniaesens bodies. The | latter

ures cas of Directors containing Tepresentatives of all

the toca Councils, an Executive Board containing the

-y Chairmen and Viee-chairmen’ of all the Master ExGeutive

+ Cofineils, and an Executive Committee, Thus. While the.

Ostablished procedure is for an agreement with an airline

to be mewotiated by a committee of iis own pilots, the

newotigtion takes place uncer the eve of ALPA‘S centra!

ofganization and the ae seTHOTT fs Hot @oneliided Without

e ‘the approval of eee Mico: of ALP ACS poliey make TS.

The negotiations that been in I96L between American

and a pilots” bewotiating comniitiee, formed in accordance

with ALPA pofley< were complicated from the ontset by

tie controve rsV as to cockpit crew ¢ mplermient on jet air--

ft whieh has occasioned a tumber of disputes end

‘strikes and-bas been the subject of two decisions of. this

‘court. Pan American World -Airwans v. Phiakt Eunaineers

lut'l Asx’. 306 F, at S40 02 Cir, 1962). Flight Laine ers

nt Tl Ass'n vy. Eastern Air Lines, V1 vr 2d 745 (2 S38:

963%. On Oetober 21, 1961, American notified the ALPA

Negotiating committee that it- aCCE Tek the recommenda-

hots of a commixsion, appoitited ‘by President Ketinedy

anc: chaired by Professor Nathan Feinsinger, that -the

“euckpit crew on jet alreraft should consist of three persons

a - ens de sires! hw the airdine ~) Pather than f: ur; > that “a flixht

2 It Was customary tor an emplovee of LEPAN te atrend sel meetings

: as “staff negotiator Later, am November, 1962, A] PA withdrew

tS representative from the ediscusstonms between American. and its pilots

° ¥ ‘ e . 4

5 A

o ¢ hal ae ee

wii

Opmion of the Unite A State & Court of Ap peals | for the.

Second Crreuid, No. 20017 «Ne pre mber 16. 1965 )

‘ &

“3%

engineer serving as one of the three sould” be innit.

o of a’ ommercial Pilot's Certificate and Instrument Rating

-— (°C and 1°") (as desired by ALE ’\): and that ALPA and

the Flight. Engineers’ Intertiational Association should:

mergé, With the job equities of the pilots. and engineers

Sreasonably protected. On November 7, 1961, the President

of ALPA wrote the National Mediation Board (NMB)

that the crew complement problems were ‘but minor issues

on American Airlines? as compared with pilot. proposals

on retirement and working conditions, notably a reduction

‘of hours. ¢ American took the position thtit it could not

vrant these if it also ha?l to underzo the expense of train-

ing its flight engineers up te the C and | requirement,

“After mediation by the NMB proved unsuccessful and

ALPA declined-a suggestion of arbitration which American

had accepted, the NMB, on July 18, 1962, flotified the parties

that its serviees had terminated. This Jeft Ameri#an’s

pilots free to strike after the lapse of 50 days, 45 US

$155 First, unless 2in Eine ‘reeney B Foard were appginted us

Shortly tefore this: the secre tury of Labor had achie ae

break-throngh on the probte ‘m oof cockpit crew Ccomplie

ment as to TWA, on the basis of the Feinsiiger Commis

sion’ recommendations. Americants engineers approved

these terms but the Compant informed the Departnient of

Labor that this settled nothing. since the American pilers

had preferred a-reduetion in hours and other benefits to”

the four man erew and had recently expressed a preference:

that American spend i ts men wv for such benefit. rather

thats in qualifying flight engineers for the full Cand T cer

‘

Pal

<>, gs

te tia i

Beinn ot thi U nite J States ¢ ‘ourt of Appew < for the

Sroond Core uit, No. PS4GI7 (Se ple wher dh, — i .

tifieate. (During July, 1962, ‘Various hieetings were held

between the Labor Department, Chairntan Kdiwards, of

the NMB, thre company, the negotiating COMMIT ve Cinelud-

ang the ALP stati re presentative ), ‘and Ruby wae had

ryeently become president of the ALPA. In the course of

these, O'Connell, 4 hatrmian cof the’ Amegean MEC anc

one ot the pilot negotiators, expressed the preferences of

the American pitots along the lines Jus tay At iater

meetings, OConpell proposed that! if Ame¥iean avould

weranil tts pilots reduced man und an improved retirement

plan, they sone ur the three man erew without

Hisisting on the € ce y el aould bring the flight en

gineers into eer Aoas the Feinsinger Commission had -

ease Since the Pilots’ willingness te relinquish the.

“and TP requirement contheted with what had been’ AL PA

ee American raised “the question whether they could

secure an ALPA appreving signature; the negotiating

committee expressed optimism. | During November the

Company met with the pilots and the flight engineers ¢

jourtls » these conferenees led te a Memorandum of agree-

ment-on erew complement, imitialed on December 1 hy rep

resentatives of the the parties, along the lines itidicatedt.

Meanwhile Orelationships between the -pilots* ‘negoti-

ating committer and the ALPA central organization were

deteriorating. Sinee div this time many other major air

lines had concluded agreements incorporating the C and 1-

requirement, ALPA objeted strenuously to the noneon-

forming negotiations. of the American pilot~ and sought,

ALPA's interest in the € and’ [ rating‘ for the thigd member of | the

Cockmt ¢

rr . ij afer, te ere ¢ . werry sete , 4° 2¢

= ress oss » Jess strsrive . verry . req emietit < al i Kdahake PSs

¢ th *

i]s » 1 ; ene the ud 1 a)! tor ¢ j he

. yo ; ite

wa g’ there wrt . ' . ha ¢ qé

- 2 i

«} hse: cones ¢ . 4% +

eo wer lar -

P t Larger tas tet

- -<

> ey “fOr =

eee ;

Opinion vf the uited State s Gout: ot dee vals for the

Second Circuit, XN vy, 2ed17 (Sente wher 16-1965 )

both by resolution and by nappe val to thee N MB. to tertamiate

the Americ an hegetittions until the question of erew com

plement was resolved in Writing to it satisfac tion. ALPA’s

e ‘fforts did not prevent initiating of the December ] memo,

until January, 1963—apparently for the purpose of giving”

randum but, om December Ame rican agreed: with Ruby.,

‘over the dissent of Oe ‘omne A that ne sorot iat bans be: “recessed

the ALPA. heyotiating committer and the ALPA eentral

“orghnization time to work out their: ditférences, Nothing

wis accomplished. At meetings at ALPAC. Chicago he ‘ic

‘quarters early in January. Rubwand the ALPA Executive

American MK C resolved WNANIMNOUSTY te autherize the fliewe

tiating committee to. econelnude ansagreement withort this. |

On January a: TGs, Ruby notified the committee and

American that noe negotiations could occur w ithout his

approval. ° The same day 0% ‘onnell requested re ‘samption

of negotiations and sacl that aly agreement wonld he

submitted for fatifieation by Americar pilots, acting with |

i Tae vote which. he asserted, cond: readily be seeured,

Ameriean cons ulted ‘Chairman Edwards ‘of the NMB: he

advised that the: company had ne thoice but to bareain

with the committee, Negotiations were resumed on Jana

cary 16; with the ALPA. staff member absent but with a

Mediation Board represent itive ailwavs present tub.

shenalaes with a. series of ‘communietitions. apprisine al}

parties of AL PA‘S view that the negotiations were n-

ieee and endeavoring “unfsnecessfully - tu initi jate a

negotiation with the ALPA home office. American asked

how a new committee of Amer ‘ean pilots eonld be desye

enated: Ruby dad né solr tion save “bringing the existme

committee in or-whiteyer arrangement was necessary,

In early Febraary, the ALPA Exeeftive Board adopted

resolutions declaring, that the American MEC and the

‘

«fron. bare

pinion of the Duited States ( ‘omrt o} Appeals For tive

“Second Circuit, No, 284 1tSe prember Ih, 21963

: ie , ies : te Bay : . ate te A

hegowaliis eomimitten Care net The bargains epresenta-

_tive’of the Ame real Mirlines pilot ~Tand directing Ruby or

hits represental ive to he wotiate an ‘conclude an agreement

with Americgs. ifort. by AL WA eripdoyers to join the

negotiating sessions having proved rbortive, it imstituted

this action, on Maredi i, 1963. seeking to enjoin American

wining with anyone othe Ahan the plaintitt.

eached an underst: viding with ifs pilots on Mareh

posed avreements referred. to’ “ALPA and pre-

American

15., The p

vided fer sfgnature by it, which wotlld ocenr Mnles-

OLR, now confronted With t completed contract, should

reverse its pre Votes position. >

Tie break was not tong i ‘conmis. ° The American ,

MECC nnamariiously fatitie: bth March toa Heres ments, Ruby,

who was invited to seme of the ~essions, said he woul 1 not

sign “these or any other agreetive mts net containing a Cand |

requirement for the hig: man. ‘Phe MEC ‘there npon awe

thorized the formation vi anew organization, Aiied P ilots

Association, 1. represent the Americiin Pilots." On April

12, SJlied <ent ont cards whieh would gil, eas it to be

“the colle tive bargamine repre sentative of the Smerican

way Labor Aet, PY US. @h 0 152 Ninth, ALPA amended

its complaint to ee One lf and the other members

of the negotiating committee as additional defendants.

On April?4 Allied tiled an application with the NMB, stat

ing that a representation dispute iad Arisetyg mong ge

‘ans Pilots and askene for an mvestigation and certifieation.

sander {2 Ninth: it) claimed to have aythorization cards’

from 1150_out of, 1600 0 pilots. . ‘ te Vir

: +i a “e : ; : \

- 4 pee Ws found “There ds no evidence that the Company sti

wested, eneoutaged of even knew in advance’ abot the determitfation

Ht the Americin pilots to leave ALP overthy C and Vo tssue and form

their own organization.” ; °

oh per on

Opinion of the Puited States Conrt ot Afrpetths tor the

Second Circuit, Noes fl, (September In; 1965

. L iy Sd .

. a j . . . 7 ;

The XMB promptly invited American and ALBA te

submit any statements they cared to make. ALPA edlled

the NME'S attention. to. this aetion, and the ‘aliowatio®- of

assistanes, intluence, and- coercion by Aimerican mide

” ° . *, a | a + ee

therein. - American dled a petition for teave to dntersens,

and a better eiving its version. of the fact. and denvfne

any improper conde On Maw 24. 103, the NAMB advise

that Alfied’s appligation had been eiveg, a prehinianie

investigation ‘by +a mediators: that. thie Board, havine

‘sreviewed all the information now in ‘its posse ssion', Was

“ol the oplion. no isspies have be en rise? Whie hh warrant

further preliminary proceedings” 0 deferral of the pro?

sine of Allied’ application pending the ontenine Gf

curresgt litigation ; amdthat it had Meseess that the tapplyea

tion be d6cketed as Case No. ROS610 and that a mediator

he assigned for further hatidlineg in aceerdance with us an

procedtre x. After receipt of further letters. trom, ALD.

Jattprney, the Board.-on June 5. adhered to this position

OntJune 14, the mediator reported he had found acgceptabe,

‘authorization ‘ards, trom 40. ee i eligibles qudots ang

recommend

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