# Petition for Writ of Certiorari — Ruby v. American Airlines, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_1455%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1964 - **Citation:** 376 U.S. 913 ## Text 7 wees “a8 : , ‘ rf ‘ss » - Oftice-Supreme ( " 1 iS i * ; € 7 3 , hve ws JRT. se u. S " b } t 1) | + te See 7 : NOV 7 163° 5 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, ha ra ' . 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 - Zs 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 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 8 s 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.. ae 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. , > ‘ ee a . A a . - * e ry , . co ‘ : Ca «J \ . ? « > ‘ > : ‘ ; * Ff P 6. t*s CeRb 6G Vlas 4 Supreme Court of the nited States . Oétober _ 1963 . \ ried m ait ‘ > Co SR No. >. Vv 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, | © td pf 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 $ 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 ¥ 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 a 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 ee 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 a the pilots. The Court, according to Alpa, has such © jurisdiction ‘independent of the National Mediation. Board’. P| ” ‘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 14 ‘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, ? 4. Sl o "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 bg 16 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 17 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 a resolution ‘reeiting that 11 authorized ‘the American: Airlines Negotiating ‘ommiittee. te —_ a contract and further te advise. AAL/man- 18 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). a 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! 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- a) 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 = i 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 . oe 1 [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 ~? . ? % on oe 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! 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 G “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.” ge i 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 ad 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 . 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, s 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 40 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° , id ’ . 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 ; ft 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 o - 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 A) 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. +t 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, 45 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. ‘ 46 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 © assistance; sitice the recognition by the employer of one 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 t | 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 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, e e x @ al 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)} . a 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 2 * — = 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 a. 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 a > 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 o 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) ; Sy 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 a 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- 3 : , 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) 59 _ 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 President Whitacre, who, while ‘attending a meeting of ©, 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 : . a oa 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- a ‘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“ le Cy 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 — with the O'Connell © ommittee as the instrument by w hich 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 we a . 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 cause the employees now indicate their suppert for the © 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 a ° + . pa 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’ 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 peat ided in 45 U.S. C. © 160. 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 o <>, gs te tia i o Beinn ot thi U nite J States ¢ ‘ourt of Appew 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 c Committee remained adamant on- the © mer I. whereas the 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 ‘ 3 ° «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 a ae nit eb act ! contract mrade with 4 representative Wwineh & t i “duly designated.” Compare American Seats C6. Wo NLRB 230 (19353). = lea Opinion of the United States Court of Appeals for ‘the Second Circuit, No, 25417 (September 16, 1963 ) found to have benefitted from unlawful condyet by the _ employer, the federal courts should fill the supposed statutor y vacuum. We would be unable to talks the first step in the argn- ment if that issue required resolution. Whether or not we would have been obliged to sustain an ‘administrative. determination that American had violated the statute’ if one had been made, we Would not make-any such finding on -our own account—mucl less set-aside the District Judge's contrary one. (The case differs essentially trom. Medo, Although the pilots’ proposal to forego the C and I require- ment in, return for economic benetits was’ doubtless to American's liking, the offer came ¢ { .m.'the ALPA nego- tiating committee, and did so at a time when, as American was told, there was still basis for hope that the central organization Would go along. American never conditioned its willingness to grant economic benefits upon the pilots’ Withdrawing from ALPA; on the contrary,.a solution leav- ing them in ALPA would have facilitated merger ef the’ flight enginecrs into that organization and an amicable disposition of-the entire controversy. Rather than refusing to deal with the union's bargaining representative and negotiating with the employees directly, as the employer ee Medo, American dealt for.months with the very gr oup’ with w hich ALPA’ = Constitution and By-Laws-and Policy Manual-told it to Weal; and when an impasse developed through ALPA’s refusal to accept the results of the nego- tiation, a refusal w holly Ww ithin its rights, ALPA was unable S W ini a charge of such a practice, having prima facie merit, is filed before @ representation election, the NLRB will customaris postp the electiym until it has pasacd upon the charge. Sce Surpronant Mftg Co. v. Alpert, 318 - 2d 396, 397° (1 Cir. 1963) 0. citing United States Coal & Coke Co, 3 NLRB 398 (1937), and the NLRB's Third Annual . Repert (1939) 143 Fi . loa og Guitite ot the United State. si ovine of Appeals forthe Second Circuit : t, No, 28417 (Sept ther 16, 1963). to Supp ily a substitute negotiating committe e that‘accorded With past praciice and its own Poliey Wanuals American recognized Allied only when possessed of substAntis al evi- dence that Allied represented an ove rwhelming proportion of its pilots and when threatened with a strike ifAt refused recognition. Under such cireumstances > ition by an employer who has not be on guilty of a relevant unfair labor practice need not await certification, although he acts at peril-of being right; the facts are far closer to those in, NVLEB vy. Twiianapolis Newspapers, Inc., 210 F.2d 501 (7 Cir. 1954), cited in United Mine Workers vo Arkansas Oul: Flooring € 0. 801 U.S. 62, 72 fn. 8 (1956). and in District 30 : > United Mine Workers v. NERB. 254 F.2d 565 (4 Cir. TWH), than to those in VWedo, Compare NLRB v. Superior Fire- : proot Door & Sash Co., 289 FP. 2d° 713, 719 (2 Cir. 1961 ). However, we need not decide this issue since we find that the distinction of the Switehmen’s ease asserted hy ALPA is not legally sufficient on the facts here. In both’ -_ “ases the basie claim‘is.of unlawful de ‘privation of thie im- “portant rights to representation guaranteed hy * 2—in the Sicitchmen’s ease by the Board's allegedly unlawful selec tion of a bargaining unit, here by the Board's allegedly unlawful condenation of illegal tactics by American. It -Was obvious almost from the beginnivg of this action that it concerned the preper representation of Ame riean’s pilots, ai subject which Congress has given: the Mediation, Board the duty to determine. Appellants .seek to bring the inkeolves within ¢ two arpas heretotore recognized as appropriate for Judicial interven. tion in Railway Labor Act mattersi—the duty of the courts to require the carrier to bargain with the duly: designated re prese ntative, Verginian Ry. Co, v, Nast Wl Federation No, © ~ J 4a ; Opinion at the Wuited States Court of Appeals for the Second Crrewit, No 29417 (September 16, 1964) 0, 300. U.S. 515 (1937), and, very likely, when necessary, a’ duty to require’ the Mediation Board to do what Congress conumatded, namely, ‘to investigate and certify—the point reserved by the Supreme Coupt in thi WAT. cise, 220 U.S. at jo6 fn. 12: ef. Order of Rail au Conductors ve Pests)! rania R, Co. _o2e U.S. 166 (1944), and decided im Air Lin Dis utch rs Ase’h v. National Mediation Board, sa F, 2 M685 (D.C. Cir.), cert. denied, 242 U.S. 849 (1951). Phe case dovs not fall within the first of these principles. For, éven though we aceept ‘appellants’ argument that, in the light of © 2 Second, Fourth and Sixth, it is net fatal that ALPA never had been ecertitied 6 Opinion of the U uitor Stufes € pene te ot deni als for thie Second Circuit, No, 28417 (September 1h, 1963) W cE the Board is not a party. For the record shows that the Board performed its duty. True, no testimony was: m taken, as it Was In the WES Case, but the Board’ > manner of vestigation Was not only as good but better under the circumstances. As we are told by an affidavit of itsp\ssist- ait Executive Secretary, it utilized pleadings, exhibits, and portions of the record already made in this action, which each of the three members reviewed. In addition. it si the Importart, benetit of its own infimate knowledge of the hegotiations, derived from the participation Of its repre- ‘sefitavys therein. ALPA has told us of no additional material facts it would have presented if the Board had xiven it a further opportunity; its complaint relates not- so much to the adequacy of the information before the Board as fo the Board's conelusion that no wrong dad been done, We see no more basis for judicial interferenes with that conclusion than with the conclusion in the Switehmen’s case that the New York Centfal’s yardmeit should vote of a sVstem-wide basis. See 320 U2 S. at 301, BUD. cae Genéral Committee). Wissouri-K.T_R. Co. Supra, A. ‘at 337. Brotherhood of Railway and Steamship Clerks v. Vugted Tr qusport Service Employers: 320 U.S. 715 (1943). reversing per curiam 137.F. 2d 817 (D.C. Cir. 1942) UNA Chapter. Flight Enxaineers Int'l Ass'n v. National Me Aietioy - Board, 294 F.2d 905 (D.C. Cir. 19614¢ cert. denied. aos U.S. 956 (1962): Air Line Stewards Assn iv. National Mediation Board, 294 F. 2d 910 (Dp. C. Cir. 1961), cert, = 369 U.S, “10-¢1062); Flight Enginicrs Int. l. ey ; Bus tern Air Lines, supra, 311 F. 2d 745. . AL PA persistently reminds us how differently the case would have heen treated if American had been a bus line subject to the 3 National Labor Relations Act rather than an by the President and Congress."’ Teen 5: eae ae bee. . Y ps Court ot Appe als for the Be 597 f September 1, OOF } : Opinion of the Uuthe 13 Second’ Cire uit. No. 2 reams subject to the Railwar nhee Aet.'° B ut the claim that the courts should do under the Railway Labor Act What Congress directed the NLRB to do under the: Natipual Labor Relations Act net only flies in the face of the differ. ence Ur the language ‘and scheme of the two “statutes but Lenetes the divtirseproble amsto which the vy were addressed: The Railway Labor Act constituted ‘legislation agreed upon between the probably unique in having been’ frankly accepted as such aoe * © [E)very stage in the evolution of this railroad labor code Was progres- sively infusied woth the purpose Of securing self “ad justme nt between the effective iy organized railroads and the equally ° op f Ez. Rh. (Co. Vv. > > = effective railroad uiueus = -*" Burley, 825° S. 711, 752-53 (1945) | (fissenting opinion of Mr. Justice F re ER The special Ntyation in the rail- road industry, where strong unions- and managemerit. had become used to dealing with each other, differed vitally from the host of problems at which the Wagner Act was - aimed—t Usinesses of every size and description, many with a histary of Sfrone anti -union bias and withpample oppor- tunity for strong-arm taeties. It was thus natural that the Wagner Act sHiould stress admintstrative adjudication Whereas the arlier Railw ay Labor Netretied primarily on mediation, PH the Courts to require the Mediation Board to transform itself into jan adjudicative aryl prosecutorial agency like the N.L-R.B. or to impose themselves upon it would distort the ° utire Congressional sche me. Moreover, Congress evidently considered the railroad ard, later, the SSenasiow Anes - : *y lo It is, however. by no means clear that the X tional, Labor bk --ations Board would have’ rourid pr sees fuck merit iw ALPA’s complaint. See note & supra. 5 . ee ; alleen eek ee ‘railroads andthe Brotherhoods. and — ow ia - . - s © 1% Opinion of the Uwited States Court of Aypyr als for the Second Circuit. No, 25iFo 0N¢ plember 16, 1963; air transpert industry to be-so heavily charged with pyblic interest as to make speed in the disposition of disputed questions of refresentation peculiarly vital. “The thirty day period W hich Congress wave ashe Mediation Board to lNVesti- ? vate and cértify under | 2 Ninth ‘is to be contrasted with — rr) Thi $7 o-dayeceqearted a fe ay ve ‘ars ago to be the average time lapse between the filing. of a charyenand final decision of. the NLRB, OFganization and P rocedure of the National Labor Rejlatrous Jourd. Rey mart oO the Ne ‘nate (Cornmittec on Labor and. Public Welfare, S. Doe. No. 81) Séth Cong. vd Sess, (1960), pp. 7-2, and with the nearly six months which were here reqtiired for full hearings,.briefing and decision by an effective judge in the Distriet. Courf Considerations such as these, and others marshalledsin the opjuione in the Switchmen’s and V.R.T. cases, underlay the Court's oor clusion that, as Jo the Railway Labor Act, The ‘inferene: is thus strong that Congress intended to. vine further in Its use of the processes of adjudication and litigation than ‘the express provisions of the Act Indieate "S20 0 So at B33: see also SVOULS. at Be. Wei re was te be no drageing ‘out-of the controversy inte other tribunals of jaw’ ove . U.S. at 305. Contrast Leedom v.-Rame, 258 0. SIS (198). Appellants argue that if the District Court hash ive diction’ when the sait was tided in March. before: Alfed evel oN isterd, this Could. got disave: een fast beoutrse the . Meditation Board conelugled in Mlaw.that there ware a repere sentation dispute between ALP A aad Allied and that the wlatter Was not ‘disqualifi d. But oit tad deecome apparent long before Allied ’s application to the Mediation Board, that this action was subject te the view that it sofehi order- froma federal @eurt: threat ‘Tsa Opmion of thy United States Court of Appeals for the Second Crrcutt, No, 28417 Ne phombher le, 1965) mination by the ageney to whieh Congress gave exclusive responsibility; the action should’ have been dismissed as SVOH as this appeared See Division Li, Order of Railroad Telegraphers vy. Leighty, 295, SAAT (4 Cir.), cert, denied, 869 TS. 885 (1962). The obstacle in a ease like this is not truly lack of © jurisdiction’? in the Dasic sense. of a lack of power in the court ‘to determing whether it. [the claim | | Was or Was not so founded in law and in faet.? Lauritzen Vv. Larsen, 345 U.S. 57 TL, O76 1953) - rather .as Mr. Hustice Jiagkson therg went on to explain, As frequently happen Ms yee a contention that the eis some barrier to vranting plain tiff’. claim. is east in. fermis of an exception to jurisdiction: of subject matter.” © areca Belt v. Mood, 327 U.S. 678 (MH6). Whether sueh a “harrier” is apparent the very instant that snit-is nent or becomes so later, the court is - bound to desmiss.! ; Affirmed. c 1] In view of this conclusion. its is unnecessary te consider appellees’ contention. that mjunctive relief was barred hy Ss7 and & of th Norris-LaGuardia Act ee Ue Se $2 107. 10% : a Cd 19a ‘ . , Judgment Sought to be Reviewed , UNITED STATES COURT OF APPEALS oy For THe Secoxp Cmecir Ata Stated Term of the United States Court of Appeals, .in and for the S Seconda: Cireait, helck at ‘the United States ‘ Courthouse in. the City of New York, “on the sixteenth day of September one thousand nine hundred’ and sixty-three. Present : ; a > ae Hox. Caries BE. Cian, Hox. Sterry R. Waterman, How. Hesrs J. Frienxpry, Crrcudt Audyes. as ? © - (Hares H. Reny, as President of the Air Line Piiots Association, International & ano., ete. ; Piaintit?s-Appeliants, v. , ° Amerntcan Amutnes. Isc. Defendant- Appellee, and Nicnoias J. OCU'ONNELL, Jk. ete. et al. Additional Defendant--A ppellees, and a JosepH V. Maxine, ete., et al., : Intéervenors. rg Appeal from the Uyited™ States’ Distriet Court for th Southern District of Xew York. 20a Judgment Sought to Be Reviewed This cause came pn to be heard on ‘the transcript of, record from the ‘United States- District. Court for the Southern District of New York, and was argued by counsel, ~ Os Consiperation Wuereror, it is. now hereby ordered, adjudged and decreed that the judginent of said District Court be and it hereby is affirmed; with costs to the appeliee American Airlines, Ine. et ° ‘. Bas A. Dante Fvsaro, Clerk ‘Filed September 16, 1963, eee coe A. Dastet Kusano, Clerk. \ a ‘% » : Wi art, District Judge, la Opinion on Motions for Preliminary Injunction - This action and the controversies involved forty chay ters in the troubled his tory of labor relation: in the air * line industry. Specifically there are’ charges here of viola- ” tgons of the Railway Labor Act (40 ‘UsalaA. dol and following: the **.Act’’) which Was made applic “able te the air lines- by amendme nts effective April 1, 136 (4e U.S.C.A. { 181). : ; The action is for al ingunction, declaratory jadgment ‘and damages and was com — hy President Riiby of Air bine Pilots Assyciatioy 7’ Alpac’) ane by Mp agains 1 American Airlines, Incr ("* Ameer ican’ or *the Company"). Intervention under roa B.C. ?. J4(d), Was permitted to President Manning ef Amerivan Airlines Chapter, hist Engineers" Inte national .As-0¢ iation (the Chapter’]), and to the ¢ ‘hapter: ; it Was re apresetited tinat ‘the re ‘were questions of daw and tact in-common. “Thies intervenor: led “a complaint also tor ‘an imjuncuodn, a the clarat ry judge nt and damages. : Thereafter intervenors ap plied under Fed. B..Civ. P. 4 to add a- additional detendant~ Nichelas J. O'Connell. ‘ Jy. Chairman of the Alpa Master en Conneil ot American pilots (the ** American MEC'). and alse the members of the Negotiating Committes Some by the American MEC (the é+additional defendants"). After tin application had been granted, the intervenof> and alse plaintitf- served amende «J complaint= which: added aves ments respecting the additional deféndants, “the qiotlon= are considered on the basis of these ame ‘eded onrlaints, The motion= now to he cons site red TT motion hv plain tiff. for summary judgmen' and a motion by defendant tes | ) ewitk e ‘ » 5 ire cy hoe eee, Option on Motions tor Prelimmary Injunction « -* strike_an affidavit, ete. will be dealt wifh separately) are tive j iu number? - an ee 1. by plaintiffs for a preliminary v injunction restrainin : Amoricon 5g et be Pa ‘ a. from negotiating with the additional defendants i as a committee pt pilots ; ; b.*from refusing to negotiate with Alpay, ce. trom idinencitigs ete. its pilots in their choice - of- bargaining representatives; ~ Bete ad. from **subverting’’ the, rights of Alpa as bar- gaining representative of American pilots; ~e«. from making any agreement as to pilots exce;t with Alpa; and : f. from changing working conditions in violation — “of the Aci: : a American for a reference to a master under Fed. R. Civ. PS 53 to determine whether ‘a majority, of defendants’ flight deck employees desire the Joint Negotiating Committee to continué to act as their bargaining representative’; ~~ by intervenors for a preliminary in jundyion restrain-_ ing American a: ‘“ ‘a. from negotiating as to tlight.engineers except with the Chapter; hb, from making any agreement as to fight enyi- neers except with the ¢ ‘hapter: sand e«. trom refusing to bargain éollle ctively With the Chapter: Fan] ene “ee or t ° ee 2 soe Jerth e of * . — , : Te ° res . . > pinion on Mottongs for Prolfintuiary laincttone . +, 4. by intervenors for an order resteaining all parties. , seid additional aletenedarits ’ we 2 .. from disseminating a propore dl agre erent QU cerning flight ¢ neineers ; : ae bb, trom holding any mectines for considering and * : - voting on such Propose «d agreement : and . . . from inilnenci ing ete, the ihielit em ines in heir, ‘choice of bargainin’ represe! ntative: and TAY pliintitfs for an is r restraining the additional ‘defendants ; ; ° s . . ” . a. from negotiating with American as to pitots. ‘+. from acting with respect to agreetients hegoti ated by them with American, abe : # the yilot~ 3 u thei in £ choi & a a. trom intlueficing ete, _ ot bargaining representative: o - 5 ‘d. trom‘ subverting’ the right=of Alpa under the * Act: 3 ‘o, from making any agréeemert ax yp Atenica!: pilots except through Aipa: aac iy ° . . “oe. . ore - f. trom participating in ane@ change in working =. conditions in violation of the Act. ‘ a By Belationship hehiveen Alpa and “A pee VIC | Internal Structure of Abpea . - , = : Alpa is a national labor organization organized ou Ted and with Home Offiecsin Chicago. For many (.., ‘ars, wolte “back at least to 193% there have been written aw reemers! Ah between. American and its. pilots, represented bs Lda m 4 Capron on Motions tor Preliminary Injunction These agreements live beer signed by the Sevan ot Alpa **forstie air line pilots in the servite: ~ American. The fast agreement is dated, and becanie pie Janu — we ary 218 1959, At provides that it shall be- renewed each vear With change Uniless ae of an intended change is given by one rape to the other under Section 6 of tye Act (45 U.S.CLA. © 156). : | Alpa dias oe recognized by Atmerican for many vears a> the répresentaive of its pilots. There has not been-euntil recently” any ‘dispute’? concerning representation which would brine about a certifieation by the National Media- tion Board (> NMB": 45 » ULS.CLA. © Koz Ninth): the Janu- ary 21, 1999 agreement. recites that Alpa has. given ‘satis. ° factory. proof’ of its represe tation but this rec ital is a carrycover Trom earlier years: no proof was in fact given er required and: there is no evidence that Alpa was ever chosen as bargaining representative for the Americ: un pilots by any ballot-or Gther formal procedure. The representation by Alpa with which we -are here concerned is of Ameriean pilocs only, and not of pilots on other air fines. This has-been the past pattern, the agresments have heen executed on such basis, and it, ap- perry tothe require or aad a ated by the Aet (ee. 45 JUAS.CLAL °° 151 Fitth and 152 Fourth and Ninth): Alpa poly is firm for negotiations -‘tindividually with each carrier and against “industry fasenn - Ep this connection, the internal structu oF * he wotieed.’ Co : au should « For each air lines the fundamental unit is ear rtakt base of the airline. The Alpa ome tibers in each Leeal Couneil Couneil, one of whichis established-at each imy elect a Captain Representative and a Co pilet Representa- / tive, : “ai - e : Sage ar > : aay a 7 : . ek ig an Motions for Prelimanary Liruncteon . * _ The Capt in Representatives and the Ob oe Kepr sentatives from all the Local @guneils of ap air Tine Take up the Master Exec utive Couneil CrMEt*) of that wir line. ‘> ; 7 The MEC elect a Chairman (called Master: Chair-. ‘man’') and a Vice-chairman. * ofa - Opmton on Motions tor Preloninarydniunction © . This TWA settlement came about after a serious situa. tien had been created by ‘a strike notice ‘from its flight engineers. to TWA and after an Emergeney Board had beentappointed-by the Preside ut (on, eee 20,1902) un- der Section 10 of the Act (TU S0% fu atge aoe als i. Washimaton, July 1042—Pilots ‘iad hight . Luan: rs Meet Se parate iy with A wert ai After the settlement: between TWA and ite flight engi- neers hiatd- bee NM announced on June 21. 1962, the Labor Department official Wished to eneourage a similar. and prompt settlement on American: Among other reasons, this Was expected to heip toward ratification dy the TWA” thielit & ‘nepiegrs of the TW A settleme “rill aun ic help. toward. settloment on -Pan- American “and Rastern (whose fight engineers had rejected thy TWA settlement and an [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_1455%3A2. 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