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

Sram Cont te Mate tas |

Lame rons, cum |

Ocroszs ‘Tzem,

2a 77

~

AMERICAN AIRLINES, IN o,

- Petitioner,

ee

JOSEPH V. MANNING, as President of the AMERICAN

AIRLINES CHAPTER, FLIGHT ENGINEERS’ INTER- -

NATIONAL ASSOCIATION AFL-CIO, and AMERICAN

AIRLINES CHAPTER, FLIGHT ENGINEERS’ INTER-

NATIONAL ASSOCIATION, AFL-CIO, an unincorpo-

rated association,

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

~_ FOR THE SECOND CIRCUIT. —

Arraus M. Wisenast

Attorney for Petitioner. .

633 Third Avenue

New York, New York 10017

—_—---

212 TN 7-1234

Gronaz A. Spares, :

Of Counsel

SUBJECT INDEX.

| ae . : " PAGE

SN BID snsoceactendnadnisvabsnsiadbessnmnléninndeceiiuausieucubaie 1

Jurisdiction acaba 2

Questions Presented saecceneaniciie 2

Statutes Involved 0... one 3

Statement of the Case....... " - _ 4

Reasons for Granting the NR ett oaks a

ROI” Siiidinintadcacisinasaceasioniies obi 16

APPENDIX: -

UNIT ssenccssnsscstnncpsicnioanitactneonceuinctunseniaetancucbasbeclaisabbiaes apiioies le

Order of the District Court Affirmed by the U. S.

Court of Appeals for the Second Circuit................ 7c

RUNNIN Tr INE cicitctecnssensictsconiedonnisatttecdniReashdeabuiedbssibe 9c

Tasiz or Cases. és

= <a PAGE

_. Aawico Airlines, Inc. v. Air Line Pilots Association,

2d ....., 49 CCH L. ©. 118,886 (5 Cir. Apr.

15, 1964) |... 7,9

Bower v. Eastern Air Lines, Inc., 214 UF. 2d 623 at |

626 (3 Cir. 1954), certiorari denied, 348.0. S. 871... 10

_ Drake Bakeries v. Bakery Workers, 370 U. S. 254 at

266 (1962) 10

Elgin, Joliet.é Eastern R. v. Burley, 325 U.S. 711 at —

739° (1945) ° 9,11

Felter v. Southern Pacific Co., 359 U. 8. 326 (1959)... 15.

Flight Engineers’ International Association v. Amer-

ican Airlines, Inc., 303 F. 24.5 (5 Cir. 1962).....2.2.....* 9

Hilbert v. Pennsylvania R., 290 F. 2d 881 at 885-886

(7 Cir. 1961), certiorari denied, 368 U. S. 900.......... _° 9

John Wiley & Sons, Inc. v. Livingston, U.S. , 848.

Ct. 909 (Mar. 30, 1964) 10

Local Union No. 271, United Seatieahniia: Food and

Allied Workers v. Needham Packing Co., um

, 84S. Ct. 773 (Mar. 9, 1964)...... 10

Locomotive Engineers ¥. Baltimore € Ohio R., 372" .

U. 8. 691 (1963) ............ ES RES er OLN ee OT TS 11

Locomotive Engineers v. Louisville & Nashville —

373 U.S. 33 at 38 (1963) nn necneeeeceneeneeneeee: 10.

Machinists v. Central Airlines, Ina, 372 U. 8. 682 . ¥

Tiscali edocs hep oaciaipieaageahdcasahaaieee 9,10 -

Machinists v. estate Air Lines, Inc., 320 F. 2d 451

££ 3 SSCS tapawee moana 7

Machinists v. Northwest Airlines, Inc., 304 F. 24.206

at 212 (8 Cir. 1962)......... en gota nl DRED eh PoE as

Manion v. Kansas City Term inal R., 353 U. S. 927

eas AU nce al a ay tener oh SEO tN TO 9°

Manning v. American Airlines Iac., 329 F. 2d 32

ot 3p _ ; SPRRReneeneie : 2

ee ere re Pal et A

, r s

ny

ad

cs iti

ate. ae re PAGE

- Order of Railway Conductors v. Pitney, 326 U. 8. 561

~ (1946) 9, 14,15

_ Order of Railway. Conductors v. Southern Railway, :

339 U. S. 255 at 256. (1950) san leleaegilicaien 10

Pennsylvania R. v. Day, 360 U. S. 548 (1959). falters 8,10

” Slocum v. Delaware, Lackawanna & Western R., 339

U. S. 239 (1950) ie oa sensee a takacalaniameadncesiate 10

St. Louis, San Francisco & Tézas R. v. ‘Raileoad

Yardmasters of — 328 F. 2d 749 (5 Cir.

Mar. 4, ee ecininsistnenbdinneSccion 7,9

Trainmen v. Chicago River ¢ Indiana R. Co., 353°

U.S. 30 at 89 (1957) ne eneceeeleeeececeneeeeectcenenennneennnes 9,10

? United Steelworkers v. Enterprise Wheel é Car

Corp., 363 U. S. 593 at 597 (1960)............... in

Whitehouse v. Illinois Cantral Ry., 349 U. S. 366 at

-873<(1955) - Me 15

, e« *

. Gp, Stators.

»28 U.S. C. §1254(1)........

"28 U. 8. C. §§1337, 2201, 2202

Railway Labor Act, . |

Section 2 First (45 U. S, C. §152 First) ................ 3,12

Section 2 Fourth (45 U.S. C. $152 Fourth)... © 3

Section 2 Seventh (45 U.S. C. §152 Seventh)...3,13,14 ~~. ‘

Section 2-Tenth (45 U.S. C. §152 Tenth)............ . 8

Section 2 Eleventh (45 U. S. C. 6152 Eleventh)... 3.

. Section 6 (45 U.S. C. , Se icsioebeconesss 3, 6, 4, 11,13

Section 201 (45 U. S. C. §181) 0... eee 3

Section 204 (45 U.S. C. $184)... soc 3

’ Norrit-LaGuardia Act,

Section 4 (29 U. 8. C. §104)...----eaceeeccssseeeeenteeen 16

Section 7 (29 U. S. C. §107)...---sceccocssssseneeceseeecenee 8, 15

Section 8 (29 U.S. C. §108)................ | is

iv

MisceLLaNzovs.

. ™ PAGE

Frankfurter & Greene, The Labor Injunction (1930) 10

National Mediation Board, Twenty-ninth Annual °

NS IN, eaiteieiinctishccsleretectliniinlicclllcsaajaistitinsnabilietions 14

te a

pram Court of the United States

Oconee Term, 1963

7

No. Pier a "a,

American Arrives, Inc.

= Petitioner,

Uv.

Josepu V. Mannine, as President of the American ArR-

Lines Cuapter, Fuicht ENcineers’ INTERNATIONAL Asso-

ciation AFL-CIO, and American AIRLINES (CHAPTER,

Fuicut. Encineers’ INTERNATIONAL ASSOCIATION; AFL-

CIO, an unincorporated association, -

Rieoendente.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

_ FOR THE SECOND CIRCUIT.

American Airlines, Ine. petitions for a writ of certiorari .

to review a judgment in the above entitled case by the |

United States Court of Appeals for the Second Circuit. °

Opinions Below.

' The opinion of the Court of Appeals is reported as

Manning v. American Airlines, Inc., 329 F. 2d 32 (2 Cir.

a

- ’

1964), and is set forth in the Appendix hereof at 1¢ to 6c.

‘The opinion of the United States District Court for the

= Southern District of New York is reported in 221 F. ‘Supp.

301, and is set forth in the Record,. Part One, at 5a

. through 19a.°

: J

Jurisdiction.

. The judgment of the Court of hint was cutaved on

oi, a 1964 (App. 6c). The jurisdiction of this

Court isNnvoked under 28 U.S. C. §1254(1).

‘ Questions Presented.

1. Whether the federal courts have JarisdieGon to, or

should, grant an injunction to a union in a dispute involving

rights claimed by a carrier under a dues check-off agree-

ment entered into pursuant to the Railway Labor Act (i)

when the union has failed to submit the dispute to the

Adjustment Board for arbitration and has otherwise failed

to use ‘‘best efforts’’ to settle it, and (ii) when there is.no

irreparable i injury requiring ancillary _— relief.

‘Whether the Railway Sshae Act requires that a use

inthis off arrangement be continued beyond the fixed date

on which the parties had — that it would be discon-

tinued.”

*The Record Appendix is cited hereinafter as CR”, It is

divided into two parts: The pages in Part One are numbered with

the suffix *a’’, and the pages in Part Two are numbered with the .

- suffix — "The pages in the Appendix to this petition | are gited

**App.”’ and numbered with the suffix ‘*e’’.

Leereest

-

.

ETRE RTE IO PEDO GSE ye SET OL LY Se PRERENDER AG

= 7 3 ‘

3 H

° Statutes” Involved. : ae

The statutes involved are the Railway Labor Act and

the Norris-LaGuardia Act, and the provisions relied upon

are set forth in the Appendix (App. 9e-172). For convenient

reference, these provisions are summarized below.

Section 201 of the Railway Labor Act makes that Act

applicable to air carriers. (45 U. S. C. $181), and Section 2

First requifes unions and employers ‘‘to-exert every rea-

sonable effort’’ both to ‘‘make and maintain agreements”?

(45 U. S.C. §152 First). |

Section 6 of the Railway Labor Act provides for the giv- _

ing of notices of intended change’ iti agreements and

” requffes that, until the statutory procedures have been

completed, ‘‘rates of pay, rules, and working conditions”’

are to be maintained (45 U. S. C. §156). Seetion’ 2 Seventh

. contains a similar provision for the period while‘agreements

are in effect (45 U. S. C. §152 Seventh).. Section 204

requires carriers and unions to establish Adjustment

Boards having jurisdiction over grievances: ‘and disputes

involy ing interpretation -or application of agreements (45 .

U.S. Cl §184). Section 2 Fourth and Tenth make it a crime

for a carrier to deduct dues payable to a union, but Section

2 Eleventh, added in 1951, permits such deductions if made

pursuant to an ‘‘agreement’’ (45 U. S. C. $152).

Section 7 of the Norris-LaGuardia Act deprives federal.

courts of jurisdiction to issue injunctions in labor disputes

_without finding inter alia ‘‘(b) thaf substantial and irrepa-

“rable injury to complainant’s property will follow...

[and] (d) that complainant has’ no adequate remedy at

law’’ (29 U. S. C. $107). Section 8 prohibits the granting

en

4 ty

of an injunction to ‘any complainant’’ who failed to make

every reasonable effort to settle the dispute ‘‘either by

negotiation or with the aid of any available governmental

machinery of. mediation or voluntary arbitration’? (29

U.S. C.§108). a

Statement of the Case.

American Airlines, Inc., an air carrier, entered into cer-

tain agreements, in 1958, with the AAL Chapter, Flight

Engineers’ International Association (hereinafter called

— the “flight engineers’’). One such agreement was the ‘*basic

agreement’’; another was the ‘‘dues check-off agreement’.

The basic agreement covers the rates of pay, rules and

' working conditions for flight engineers. The dues check-off

agreement is a specialized ‘‘side agreement’’ devoted

exclusively to the check-off of union dues. |

‘This was the first dues check-off arrangement between

American and its flight engineers. The issue had been

‘hotly contested in negotiations; finally the parties were

able to strike a compromise, which ‘‘split it down the

middle’’: they agreed that the dues check-off agreement

would be for a limited term, and that the check-off of dues

would be discontinued on the expiration date fixed by that

agreement. They did this knowing that negotiations, insti-

tuted by service of a Section 6 notice in respect to renewal of

the basic agreement, would_likely extend beyond thai date.

And to express the compromise reached, the parties par-

ticularly ‘selected, for the terminal clause of the side agree-

ment, special language quite different from the terminal

language customarily used in their basic agreement.

‘‘G. This Agreement shall become effective May

1, 1958 and shall continue in full force and effect

until April 30, 1963, and shall be subject to renewal

Riek YT DERI pe A eR IL BP: y mw 0 y <a RTA PL EA AR a

thereafter only by mtual agreement of the parties

hereto.’’* (Emphasi: added.)

That the parties intended that the dues check-off would

end on April 30, 1963, is not contested, as shown ‘by the

following stipulations in the District Court (R. 20a-21a):

‘‘Mr. Wisehart [Counsel for Petitioner]: That’s

right, and that is the next question. I do not under-

‘stand Mr. Schwartz to se¥iously dispute what the

agreement on its face calls for. Assuming that it

does call for termination on April 30,* * *

The Court: It seems to me at this point rea-

sonably plain that that is what the agreement calls

for. 1 don’t see that an agreement of that nature

needs any interpretation. It is either there or it

isn’t there. Do you agree, Mr. Schwartz?

Mr. Schwartz [Counsel for Respondents] : I do,

your Honor.

* ~ . * =e ” ee

‘

Mri chwartz: Yes. We have stated, and we have

stated before Judge Bryan and your Honor, that

there is no question between us as to what the agree-

ment means. Judge Bryan said it is clear, we said

it is clear it terminated. The agreement was that

there be an end, period * * °.’’-

However, before the expiration date, the. flight engineers.

served a Section 6 notice and now assert that by that uni-

lateral act the check-off arrangement, which the parties. by

their special agreement, had understood was to be dis-

* In contrast. the duration clause of. the basie agreement pro-

vides (R. 8a): *'This Agreement shall become effective May 1, 195s +

and shall continue in full force and effeet until April 30, 1963 and

shall renew itself without ¢hange until each successive April 30 there-

after unless written notive of intended change is served in aecord-

ance with Section 6, Title I. of the Railway. Labor Act, as amended,

by either party hereto at least sixty (60) days prior to April 30

in any vear after April 80, 1962; ...”°

°

set ull TARE BT RANE ORAL OLS PEELE RIOR NG Le Ra

. ton

continued on April 30, 1963, must be continued indefinitely

beyond ‘that date.* ; | | ;

The flight engineers then sued for a mandatory injunc-

tion to require continuation of the dues check-off. The

suit was brought in the United States District Court for

the Southern District of New York, the jurisiiction of’

which was invoked because the case arises under the Rail-

way Labor Act. an ‘‘Act of Congress regulating commerce’’

(28 U. S. C. 9$1337, 2201, 2202). |

Neither before nor after commencing the suit did the

flight engineers make an attempt to seek a remedy from

the Adjustment Board or the National Mediation Board

(R. 20a, 22a-23a). ; | | :

An injunction was entered by the District Court on Sep-

tember 16, 1963 (App. 7¢-8c). The District Court held that

this is a ‘‘major’’ dispute, that there is no question of con-

tract interpretation, that the flight engineers had no obliga-

tion to invoke the services of the National Mediation Board

or the jurisdiction of the Adjustment Board, and that the

parties’ agreement to terminate the dues check-off on April

30, 1963 was contrary to public policy (R. 13a, 17a). , The

Second Circuit affirmed (App. 6c-7c). It found that dues

check-off constitutes a ‘‘working condition’’ under Sec-

tion 6 of the Railway Labor Act, and that the Adjustment

Board had no jurisdiction (App. 3ce-6c). The Second Cir-

cuit concluded that the purpose of Section 6 ‘‘. . . is to stab-

* Experience under the Railway Labor Act has shown that the

statutory precedures. during which the *‘status quo’* must be main-

tained, may continue for many months, frequently years. In this

case, for example, it is already apparent that the-‘‘status quo”’

period will substantially exceed one year. Because of such lengthy

periods, it is obvionsly important for those covered by the. Act

to know whether it liss within pheir competence te agree that eer-

tain specialized arrangements will terminate on a fixed date

- mutually agreed to, rather than being subject to indefinite contina—

ation through unilateral action.

i .

ee ee » EET Ge en en ° hie ccee erst —— - — . ee

—_ SLSR AO ERR eit shale CORTES NE RT Sk al ed ARO AREAS Spee WER RES ESOL RITA SAR

: 7

ilize relations by artificially extending the lives of: agree-

ments for a limited period regardless of the parties’ inten-

tiong.’’ (App. 4c; emphasis added. )

‘Reasons for Granting the Writ.

i

The Second Circuit concluded that the Adjustment

Board has no jurisdiction because application ot Section

6 of the Railway Labor Act is involved (App. 6c). This

conclusion is in direct conflict with decisions in other cir-

cuits, and inconsistent with decisions of this Court.

In St. Louis, San Francisco & Texas R. v. Railroad

Yardmasters of America, 328 F. 2d 749 (5 Cir. Mar. 4,

ae 41964), a railroad abolished certain jobs. The union

sought an injunction, as here, alleging violation of Section

6 (45 U. S. C. $156). The railroad contended that there

was no violation because its action was based on rights

under a contract. The Court ot Appeals held that the

Adjustment Board had exclusive jurisdiction, and reversed

the District Court’s injunction. In the Fifth Circuit’s v lew,

the contractual defense gave rise to an issue required to

be determined by the Adjustment Board, notwithstanding

the Section 6 allegation.

See’also Machinists v. Eastern Air Lines, Inc., 320 F. 2d.

451 at 453 (5 Cir. 1963). .

- Aazico Airlines, Inc. v. Air Lines Pilots Association,

abbas F. 2d ......... 49 CCH'L. C. 118,886 (5 Cir. Apr. 10, 1964),

holds that a dispute as to whether or not an agreement has

terminated is a ‘‘minor’’ dispute and within the exclusive

jurisdiction of the Adjustment Board.

While the Second Circuit says that this case does not

involve contract interpretation, tlie following passage from

the opinion shows that its decision in fact rests on an inter-

pretation of the check-off agreement (App. 4c):

‘A stronger form of the argument is that the

contrast of the language of the check- off agreément—

ee ee

\y

ORR Sialitty Bit OI DER LLL ILO PA Pl RS Oe Be AE

8

“shall be subject to renewal thereaf ter only by mutual

agreement of the parties hereto’—with the auto-

matic renewal language of the basic agreement, and

_ of two side agreements, warrants the conclusion that *

the parties did not mean {6 to apply. Passing the

question whether and how parties subject to the

Railway Labor Act can lawfu!!, make agreements

‘affecting rates of pay, rules or working conditions’

so that these will not be subject to (6, as might be

convenient when unusual situations of short dura-

tion arise within the period of a basic contract, we

think the argument puts more strain on the words of

the check-off agreement than these will bear. In our

view the different language meant only that auto-

matic renewal of the basic agreement would not carry

the check-off agreement along with it. It is no answer

that §6 thus gives identical effect to two intentionally

dissimilar provisions; the very purpose of §6 is to

stabilize relations by artificially extending the lives

of agreements for a limited period regardless ‘of the

‘parties’ intentions.’’ (Emphasis added.)

cw

What the contract’s ‘different language meant’’, and

whether ‘‘the argument puts more strain on the words of

the check-off agreement than these will bear’’, are ques-

tions which have been entrusted to the Adjustment Board.

Congress has asked for the ‘‘view’’ of the Adjustment

Board, not the ‘‘view”’ of the Court of Appeals, concerning |

such matters. ;

The Adjustment Board has exclusive jurisdiction

because of its expertise, and because it alone can provide a

unifor’. interpretation of the agreements between the

parties, not to.speak of the therapeutic values inherént. in

the process. Lack of uniformity in the disposition of such

matters ‘‘. . . would haghper if not defeat the central

“purpose of the Railway Labor Act.”? Pennsylvania R. v.

Day, 360 U. S. 548 at 553 (1959). While the jurisdiction

of federal courts is subject to geographical limitations,

the Adjustment Board may make a determination that is

-

ae A RR cs

NS

9 .

‘‘fnal and binding’? throughout the American Airlines

system. |

_ The danger of inconsistent determinations by various

Courts of Appeals, if not already obvious, is brought home

by Flight Engineers’ Intcrnational Association v American

_ Airlines, Inc., 303 F. 2d 5 (5 Cir. 1962). That case involved

the duration clause of the same basic agreement between

the very same parties (although the dues check-off agree-

ment was not in issue). There, the Fifth Circuit held that

the Adjustment Board should make the kind of determina-

tions about duration clauses which the Second Circuit itself

has made here (303 F. 2d at 13).

‘ In Order of Railway Conductors v. Pitney, 326 U. s. 361

(1946), an injunction was denied, despite an asserted

violation of Section 6, because there had been no prior

resort to the Adjustment Board. There, as here, the car-

rier’s defense was based on a collective bargaining agree-

ment. In Manion v. Kansas City Terminal R., 353 U. S.

927 (1959), an injunction against. a union Was denied per

curiam, again because of no prior resort to the Adjustment

Board by the plaintiff. ? ;

Relying on Manion, supra, the Seventh and Eighth °

Circuits have held that ‘injunctions should be denied—

whether sought by the union or the earrier—when there had

been no prior resort to the Adjustment Board. Hilbert v.

Pennsylvania R., 290 F. 2d 881 at 885-886 (7, Cir. 1961),

‘eertivrari denied, 368 U. S. 900; Machinists v. Northwest

Airlines, Inc., 304 F. 2d. 206 at 212 (8 Cir. 1962).*

The Adjustment Board is a form of compulsory labor

arbitration. Machinists v. Central Airlines, Inc., 372 U.S.

682 (1963); Trainmen v. Chicago River & Indiana R. Co.,

* Those cases were held to involve **minor”’ eve Under

the test iv. Elgin, Joliet & Eastern R. v. Burley, 625 U.S. 711 at

739 (1945), American’s claims with respect to the duration clause

have to do with ‘‘accrued rights’’, and also constitute a *‘minor’

dispute. See-Nt-Louis, San Francisco & Tecas R. vy. Railroad Yard-

masters of America, 328 F. 2d 749 (5 Cir. Mar. 4, 1964) ; Aarico

Airlines, Inc. v. dir Line Pilots Asso iation, P.2d . . @,

CCH L. C. 918,886 (5 Cir. Apr. 15. 1964).

,

es OD OS ES ERS LORD oer aoe

.

ce eeccmne cement | ae mene nnee cenemetee atime. comenerenent

10

353 U. S. 30-at 39 (1957). Its jurisdiction is exclusive.

Slocum v. Delaware, Lackawanna & Western R., 339 U.S.

239 (1950); Pennsylvania R. v. Day, 360 U. S. 548 at 552-554

(1959). ‘*... when Congress ordered the establishment of

system boards to hear and decide airline contract disputes,

it intended the [Adjustment] Board to be and act as a pub-

lic agency, not as a private go-between’’. Machinists v.

Central Airlines, Inc., 372 U.S. 682 at 695 (1963), quoting

with approval from Bower v. Eastern Air Lanes, Inc., 214 F.

2d 623 at 626 (3 Cir. 1954), certiorari denied, 348 U.S. 871.

‘«. .. if a carrier or a union could choose a court instead

of the Board,’’ the other party would be ‘‘deprived of the

privilege of’’an Adjustment Board determination. Order

of Railway. Conductors v. Southern Railway, 339 U.S. 255

at 256 (1950). Therefore, one party ‘‘may not defeat this

right by resorting to some other forum.’’ Locomotive

Engineers v. Louisville & Nashville R., 373 U.S. 33 at 38

(1963).

We submit that the exclusive nature of the 5 caaibic

Board’s jurisdiction has been declared too emphatically for

a dubious exception to be created here without review by

this Court.*

* Adjustment Board agreements pursuant to Section 204 of the

Railway Labor Act have been equated to labor arbitration under

Section 301 for the purposes of federal jurisdiction. Machinists vy.

Central Airlines, Ine., 372 VS. 682 at 692 (19625. Two cases just

decided indicate that exceptions to the duty to arbitrate are to be

. narrowly construed. John Wiley & Sons, Ine. v. Livingston,

me tee S . 848. Ct. 909 (Mar. 30, 1964): Loeal Union No. 271,

United Packinghousc, Food and Ailicd Workers v. Needham Pack-

ing Co., TLS. , 848. Ct. 773 ¢Mar. 9, 1964). The exceptions

to the duty to arbitrate are narrow because of arbitration’s thera-

peutic values, not only in interpreting agreements, But also ‘when -

it comes te formulating remedirs..’ United Steelworkers v. Enter-

prise Wheel & Car Corp., 363 V8. 593 at (1960). See also

Drake Bakeries v. Bakery’ Workers, 370 U.S. 254 at 266 (1962).

Remedies in the form-vof injunetions in labor disputes have not had

similar therapeutie values attributed ta them, however. See Frank-

furter & Greene, The Labor Injunction (1930). The lack of thera-

pertie valnes is particularly evident when, “as in’ this-ease, the —__

injunction setves to foreclose action By the specialized agencies

which have been created to- deal with the matter.

.

Se

11

II.

On the merits, this is a case of first. impression having

an important bearing on the administration of the Railway

Labor Act. The Act contains peace-making procedures dur-

ing which resort to ‘‘self-help’’, or economic warfare, is

deferred: Cf. Elgin, Joliet & Eastern R. v. Burley, 325

U.S. 711 at 725.(1945) ; Locomotive Engineers v. Baltimore

¢ Ohio R., 372 U.S. 691 (1963). Implicit in the decision

below is the assumption that termination of the dues check-

off was the equivalent of.some form of self-help, such as a

strike, lock oul, or other unilateral change in conditions. —

But whether action taken pursuant fo mutual agreement

ean be equated to'such*unilateral self-help is by no means

clear. | .

If the parties had held their first negotiating session on

April 30, 1963 and,.to meet the exigencies then existing,had-

agreed to terminate the dues check-off temporarily, while

negotiations continued, that agreement surely would be

given effect, whether or not a Section 6 notice was out-

standing. No violation of the ‘‘status quo’’ would be

involved: the action taken would. result not from unilateral

change, but from bilateral agreement. F

The only difference between the foregoing example and

this-case is that the agreement to terminate the dues check-

off was not made in current negotiations, but in the pre-

ceding negotiations—to mect the exigencies existing when

the dues check-off arrangement was first adopted. Should _

this agreement not be given effect as well? In each case,

termination of the dues check-off results from bilateral

_ agreement, not unilateral change. The only distinction is

in point of time: in fhe first example, termination was-

agreed upon in current negotiations; ia this ease, termina-

fa,

lz

tion was agreed upon in the preceding negotiations. We

, suggest that yoluntary consensual arrangements arising out

of the exigencies of either situation should be given effect.

The requirement that carriers and unions ‘‘exert

every reasonable effort to make and maintain agreements”’

is = first duty imposed by the Railway Labor Act (45

U, S. C. §152 First; emphasis added). Here, during_the-

pee negotiations, the parties did ‘‘exert every reason-

able etfort’’ to make an agreement: after extensive bargain-

ing on the difficult subject of dues check-off, they were able

to strike a compromise. An agreement reflecting that

compromise having been made, the question presented by

this case is whether the agreement, once made, can be

maintained.

_The agreement has been fully stint by the Com-

pany, but the Second Circuit declared the quid pro quo—

termination on a fixed date—to be contrary to public policy.

A bargaining compromise of the type in question is a usefal

device for settling serious disputes A decision which

restricts the ability of labor and management to resolve

their problems peacefully, by utilizing such bargaining com-

promises, should be reviewed by this Court.

The importance of the Second Circuit’s decision is obvi-

ous. On one hand, a statute which, in form, substance, and

_ legislative history, testifies to the importance of making and

maintaining agreements is confronted, on the other hand, by

a decision saying that such an agreement, the end-product

of collective bargaining, cannot be -given effect—indeed,

that it may be struck down by an exercise of injunctive

power. ‘

» We contend (i) that it shoul: require a very plain show-

ing of legislative purpose to.produce such a result, (ii)

SO ACOA BIS Aas

OLY Sheena SP *

. .

ACERS TOL OODB BES ote V8 OCD gt OE AAI yp, eet TN Meh dk ALD ahs PRM

Fs 135

that the statute does not contain a plain showing of such

a ‘purpose, and (iii) that the statute instead plainly shows

a legislative purpose to maintain agreements, not to maim

them.

The Second Circuit hypothesizes that its decision “arti-

ficially’’ extending the dues check-off will ‘‘stabilize rela-

‘tions’? (App. 4c). One may wonder whether frustration of |

purpose ever ‘‘stabilizes relations’. In any event, the:

hypothesis is one that should be declared by Congress, not

by the courts, and we respectfully seck the opportunity,

in this case of first impression, to demonstrate that Con-

gress has not enacted that hypothesis into law. |

III. ;

According to the Second Cireuit, ‘‘The effect of (6 [of

the Railway Labor Act] is to prolong agreements subject

to its provisions regardless of what they say as to termina-

tion’? (App. 8c). In so concluding,, the court’s opinion

ignores Section 2 Seventh (45 U. S.C. $152, Seventh).

Section 2 Seventh permits earriers to make changes in

working eonditions as ‘‘embodied’’ in agreements in one

of two ways: ‘‘in the manner prescribed’’ either ‘*in such

agreements or in Section 6 of this Act.’’ (Einphasis added.)

In other words, if the agreement itself calls for a change

to be made, as here, Section 2 Seventh permits the carrier |

to act. accordingly; if not, the Section 6 procedures are |

applicable.

A clearer case for the dnuliventiit’ of Section 2 Seventh,

and the non-appligability of Section 6, could scarcely he

found. Of two duration clauses‘in two agreements entered

into by the parties on the same date, and prepared by the

same draftsmen, one specifically refers to Section 6 and

4

pro mh lel AA Pais ~ act itl D OL AT RY I ORAL ANOLE MATE BENGE AY LEL EIA EIDE CADDIE IA

~~ "414

. its procedures, ‘jis other pointedly avoids doing, so ( both

are quoted supra, pp. 4-5).

' ° Based on Section 2 Seventh, the. Supreme Court, in

Order of Railway Conductors v. Pitney, 326 U.S. 561 at 565.

(1946), concluded that ‘‘. . . the only conduct which would

violate §6 is a change of those working conditions which are

‘embodied’ in agreements.’’ (Emphasis added.)*

In this case, the date for stopping the dues check-off

is a part of the bargained. for consideration that is

‘‘embodied’’ in the agreement just as much as any of its

other terms and conditions. We therefore suggest that

termination of the dues check-off was not in violation of

Section 6, but was a change permitted under Section 2

Seventh, and that the Second Circuit’s decision to the

- cottrary is inconsistent, in ‘principle, with Order of Rail-

way Conductors v. Pitney, supra. |

Iv.

Directly affected by this case will be numerous fixed-

term agreements between air carriers and their employees,

and railroad contracts no-doubt will be affected also. The

amicus curiae brief submitted below by the Air Transport

Association, on behalf of forty-three U. S. flag carriers,

‘points out that the use of such ‘side -agreements’’ with |

* The National Mediation Board: which performs‘ mediatory

functions pursuant to the Railway Labor Act, also takes the same

view, as shown in its Twenty- -niyth Annus] Report, p. 32 (1963) :

és

. the rights of the parties which they had prior to

serving the notice of intention to change remain the same

during the period the proposal is under: consideration, and

remain so until the proposal is finally aeted upon. The

Board has stated in instances of this kind that the serving

of 2 section 6 notice for a new rule or a change in an existing

rule dees not operate as a bar to carrier actions which are

taken under rules currently in effect.’’

-

pote ae eee,

_

t

15

fixed duration dates is commonplace in the air transport

industry. ‘‘In-:the main, these side agreements and under-

standings refer to changes and variations ‘in aircraft or

route operations, unusual seniority or training require-

ments, new types of flight or ground equipment, short-

term operations, emergencies and the like’? (R. 149b, Br.

p. 5). Inthe view of the Air Transport Association, the

result below ‘‘. . . will have a harmful effect on the estab-

lished industry practice of negotiating fized term agree-

ments to govern special circumstances’’ (Br. p. 6).

The subject matter of this-case is also of substantial

importance. Union security agreements are the subject of

specialized statutory treatment in both the National Labor :

Relations Act and the Railway Labor Act. The importance .

' of questions arising under these statutory provisions has

caused this Court to grant certiorari to review cases arising

- under’them in the past. See, e.g., Felter v. Southern Pacific

Co., 359 U. S. 326 —

¥.

Also involved are Norris-LaGuardia Act problems suf-

ficiently serious to warrant this Court’s attention. Section

7 of the Act specifies that federal courts are w ithout juris-

diction to issue injunctions in labor disputes unless they

find, inter alia, that irreparable injury ‘‘will’’ follow and

that there is no adequate remedy at law (29 U. S. C. 6107).

Under prior decisions such findings could not be made in

this case, we think, because (i) thé subject matter involves

a claim for money am (ii) there had been no prior resort to

- the Adjustment Boarl. Cf. Whitehouse v. Illinois Central

Ky., 349°. S. 366 at 373 (1955); Order of Railway Con-

ductors. v. Pitney, 226 U.S. 561 at 567 (1946).

6 is Iie en LAB Nahe WPA A AL Sieh GRAS A DEARLY RES RRO RIBS OILS DLC AN

re sd aoe eae.

~OE DA that BG PME LAPD HD ALBEL CAA Ma APL BAG AE PARED ALE x LI PIE EMD

16

Conclusion.

. For the foregoing reasons, this petition for a writ of =

certiorari should be —

Dated:-New York, New York,

May 12, 1964.

Respectfully submitted,

Grorce A. Sparer,

Of Counsel.

“ Y

ts

Cp

otf

ArTHur M. WiseHakt,

Attorney for Petitioner,

A 653 Third Avenue,

New York, New York 10017.

212 Ty 7-1234

EEE eeeeeeererreeerrerr

“Ie

APPENDIX.

Opinion.

-@

| gE (os) wien stares couRT OF APPEALS

For tHe Seconp Crecerr. . |

| '. No: 177—September Term, 1963..

(Argued October 22, 1963 Decided February 14, 1964.) _

; Docket No. 28461

JosePH V. Maxnina, 8 Spo of the American Air-

lines Chapter, Flight—Kngineers’ International Ass’n,

* et al., et eae

: , Lo.

‘ a

AMERICAN AIRLINES, INc.

* Defendant-Appellant.

.

Plaintiff s-A ppellees,

Before:. . ,

Lumparp, Chief Judge,

Mepina:and Frrenpwy, Circuit Judges.

Appeal by an airline from an order of the District Court

fer the Southern District of New York, Inzer B. Wyatt, .

Judge, directing it to resume check-off of union dues. —

Affirmed. © . ;

Arruur M. Wisenart, New York, N. Y. (George

A. Spater, H. Wayne Wile, of Counsel),

‘ for American Airlines, Inc., Defendant-

Appellant.

2e

Opinion.

(992) AsHER W. Scnwartz (O’Donnell & Schwartz,

New York, N. Y.) (Walter N. Kaufman, of

Counsel), for Platntiffs-A ppellees.

Joun E. Sreruen, Washington, D. C.; submitted

a brief for Air Transport Association of Amer-

ica as amicus curie..

FRIENDLY, Circuit Judge:

This appeal concerns another phase of the contreversy

between American Airlines, Inc. and its flight engineers

discussed in the opinious in No. 28473, this day decided.

At the same time that it signed the basic agreement of May

1, 1958, with its Chapter of Flight Engineers’ International

Association, which was to ‘‘continue in full force and effect

until April 30, 1963 and shall renew itself without change

until each successjve April 30 thereafter unless written

notice of intended change is served Mh accordance with Sec-

tion 6, Title I, of the Railway Labor Act, as amended, by

either party hereto at least sixty (60) days prior to April

30 in any vear after April 30, 1962,”’ American executed

another agreement for the check-off of union dues of engi-

neers who signed a preseribed authorization form. This

check-off agreement was to ‘‘continue in full force and

effect until. April 30, 1963, and shal] be subject to renewal

thereafter only by mutual agreement of the parties hereto.”’

American’s February 28, 1963 ‘topener’’ under the basic

agreement exeluded ‘‘the dues-checkoff agreement which

“expires of its own terms on April 30, 1963.’’ Although the

€ ‘hapter’ s February 28 ‘‘opener”’ did not refer to the check-

otf agreement, the Chapter gaye notice on March 8 of a

desire to chanze the latter so that it would have a termina-

tien date and a self-renewal clause similar to the proposed

new basic agreement. American discontinued the check-off

« (993) of dues on May 1, 1963. In an action brought by the

Chapter,..Judge Wyatt issued an order directing it to

resume this, from whieh it appeals.

ah

3e

Opimion. ,

Validity of the order turns primarily on <6 of t).e Rail-

way Labor Act, 45 U. S. C. §156. The first sentence of that

‘section requires 30 days’ written notice of ‘‘an intended

change in agreements affecting rates of ‘pay, rules, or work-

ing coriditions.’? The seeond sentence says that where such

notice has been given, and in certain other instances not

here material, ‘‘rates of pay, rules, or working conditions

shall not be altered by the earrier’’ until the controversy

ims been finally acted upon by the Mediation Board or until

a lapse of ten days after conferences without request for

or proffer of its servicés—events which have not here

occurred. .

_ The propriety of an injunction to enforce the then unique

provisions of the Railway Labor Act for maintaining the

status quo while. the parties to a labor dispute pursue vari-

ous stages of negotiation, mediation or arbitration, was’

established long ago. Texas & N. O. R.R. v. Brotherhood

of Ry. Clerks, 281 U. S: 548, 065-66(1930). -Although the

Texas & N. O. decision antedated the Norris-LaGuardia

Act, 29. U. S. C. §§101-115; the debates on that ‘Act, 75

Cong. Ree. 5503-04 (1932), made clear that -it was not -

intended to apply to injunctions of this nature. See Rail-

road Yardmasters v. Pennsylvania R.R., 224 F. %d 226

(3 Cir. 1955); Chicago, R. I. d& P. R.R..v. Switchinen’s

Union, 292 F, 2d 61, 63-64, 66. (2 Cir. 1961), cert. denied,

240 U.S. 936 (1962).

American's principal argument, in which if is joined by

the Air Transport Association of America as amicus

curiae, is that -6 ix inapplicable because the check-off is.

a ‘‘specialized’’ agteement with a fixed termination date

and without the self-renewal provisions of the basic agree-

(994) ment. Stated so broadly the argument is wholly with-

out force. The effect of 66 is to prolong agreements sub-

ject to its provisions regardless of what they say as to

termination» If th@ basic agreement of 1958 had no auto-~

matie renewal clause, ‘6 would have nonetheless applied;

unless the term of the agreement were still to be followed

Opinion.

- there would be ‘‘an intended change,’’ which would bring

intp play the thirty-day notice provision of §6 and with it

the requirement of the second sentence that the status quo

‘be maintained until compliance with all the demands of the

section was had. Indeed, the current effectiveness of the

wage and hour clauses of the basic agreement, which Amer-

ican does not contest, is due solely to the. second sentence

of §6, since automatic renewal was prevented by the

openers.

A stronger form of the argument is that the contrast of

the language of the check-off agreement—‘‘shall be sub-

ject to renewal thereafter only by mutual agreement of the

parties hereto’’—with the’ automatic renewal language of

the basic agreement, and of two side agreements, warrants

the conclusion that the parties did not mean 46 to apply.

Passing. the question whether and how parties subject to—

the Railway Labor Act can lawfully make agreements

‘affecting rates of pay, rules or working conditions’’ so

that these will not be subject to 46, as might be convenient

when unusual situations of short duration arise within the

period of a basie contract, we think the argument puts

more strain on the words of the check-off agreement: than

these will bear. In our view the different language meant

only that automatic renewal of the basic agreement would

not carry the-check-off agreement along with it. It is no

answer that 66 thus gives identical éffect to two intention-

ally dissimilar provisions; the very purpose of ‘6 is to

‘stabilize relations by artificially extending the lives of

(995) agreements for a limited period regardless of the

parties’ intentions.

American was thus required to maintain the check-off if,

but only if, this comes’ within the phrase ‘‘rates of pay,

rules or working ¢onditions’’—a phrase in 46 which springs

from the original Railway Labor Act-of 1926, 44 Stat. 582,

_ and was left unchanged when the Act was amended in

1934, 48 Stat. 1197. We see little foree in American’s claim

that Congress could not have intended a check-off agree-

ER PLANE ALLE IO A LL AN TA Ee > Oe E84 OY COLT AE an BIN Bo A RST PRUE FO

de

Opinion.

ment tg be comprehended by these words since §2 Fourth

of the Railway Labor Act made all such agreements unlaw-

ful until §2 Eleventh was added in 1951, 64 Stat. 1238.

A statute taxing ‘‘beverages,’’ enacted during the prohibi-

tion era, would surely include hard drinks when these

became lawful, as well as soft ones» But the question

remains whether an rising which, as American argues,

affects only the employees’ relations with their union, as .

distinguished, from matters such as hours, seniority or

safety, is a ‘‘working condition.”’

We are persuaded that it is. ‘‘ Working conditions” is a

broad term. The Act uses the same phrase ‘‘rates of pay,

rules, or working congitions’’ in §§3 First (i) and 204, 45

U. 8. C. §§153 Firs® (i) and 184, relating to boards of

adjustment, where the desire was rather plainly to be as

comprehensive as possible; we find it difficult to believe

that if during the term of the agreewent the Chapter had

complained of an inadequacy in the check-off and had

refused to submit the issue to a board of adjustment,

American would not have thought itself entitled to the

powerful remedy which the Act gives when a union declines

to arbitrate such-a dispute. See Brotherhood of Railroad

Trainmen vy. Chicago River & I. R.R., 353 U. S. 30 (1937).

The check-off has been held to come within the provisions

‘of the National Labor Relations Act, §§8(a)(5) and 9(a),

(996) requiring an employer to bargain with the employees’

designated representative ‘‘in respect to rates of pay,

' wages, hours of employment, or other conditions of employ-

ment.’’ NLRB v. Reed & Prince Mfg. Co., 205 F. 2d 131,

136 (1 Cir.), cert. denied, 346 U. S. 887 (1953) ; ef. Switch-

men’s Union v. Southern Pac. Co., 253 F. 2d 81, 84 (9 Cir.),

cert: denied, 358 U. S. 818 (1958). The purpose of §6 was

to prevent rocking of the boat by either side until the pro-

cedures of the Railway Labor Act were exhausted; inter-

preting ‘‘working conditions”’ to include an agreed check-off

accomplishes that purpose better than a narrower con-

struction.

6c

Opinion.

American’s claim that the controversy was within the

exclusive jurisdiction of the board of adjustment under

§204 overlooks that what is here involved is not ‘‘the inter-

pretation or application’’ of the check-off agreement, which

admittedly expired on April 30, 1963, but the application

of §6 of the Railway Labor Act. The many other argu-

ments advanced do not warrant discussion.

Affirmed. ¢

. (163B) UNITED STATES COURT OF w feruals

For THE Seous Cmevrr.

At a Stated Term of the United States Court of Appeals,

in and for the Second Circuit, held at the United States

Courthouse in the City of New York, on the fourteenth day

of February one thousand nine hundred and sixty-four.

Present: ; ©

Hon. J. Epwarp LumBakp,

Chief Judge,

Hon. Harors R. Meprna,

Hon. Henry J. FRIEnD_.y,

Circuit Judges.

*Josepn V. Manno, as President of the American AIRLINES

Cuapter, Fuicut Encinerrs’ INTERNATIONAL ASSOCIATION,

AFL-CIO, and American Atrursés Cuaprer, FLIGHT

ENGINEERS’ INTERNATIONAL Association, AFL-CIO, an

unincorporated association,

Plaintiffs-A ppellees,

v.

American Arrives, Inc.,

. Defendant-Appellant.

Appeal froin the United States District ‘Court for the

Southern District of New York.

> 4 EL FOS A rr OL Sw: sci liiceeiesaaaneiiaaaiahiiiminie PERE OEM ION SelB I ABE

- .

7e

Order of the District Court Affirmed bythe U. S. Court

of Appeals for the Second Circuit.

This cause came on to be heard on the ‘transcript of

record from the United States District Court for the South-

ern District of New York, and was argued by counsel. :

Ow Consiperation WHEREoF, it is now hereby ordered,

adjudged, and decreed that the order of said District Court

be and it hereby is affirmed.

A. Dante, Fvsaro,

Clerk.

‘Onde of the District Court Affirmed by the U. 3.

Court of Appeals for the Second Circuit.

(469) Plaintiffs’ motion for a preliminary injunction in

their favor and against the defendant having come on for

hearing, and the Court having considered the pleadings,

the affidavits submitted\in support of said motion and in’

opposition thereto, the evidence introduced in open court,

and the memoranda of law submitted by the parties, and

the Court having separately made and filed findings of fact

2nd conelusions of law, it is

Orperep that until (a) the final hearing and judgment

herein or (b) the controversy has been finally acted upon _

as required by Section 5 of the Railway. Labor Act (45

U. S. C. £155), by National Mediation Board, uniess a

period of ten days has elapsed after termination of con-

ferences without request for or proffer of the services of

the Mediation Board, whichever first occurs, defendant,

American Airlines, Inc., its officers, agents and employees,

he and hereby are enjoined and restrained from discontinu-

ing the deduction of dues and the remittance thereof to

the American Airlines (470) Chapter, Flight Engineers’

International Association, AFL-CIO, in accordance with

the practice established and followed under the dues check-

off agreement entered into by American Airlines, Inc., and

80

Order of the District Court Affirmed by the U. S. Court

_of Appeals for the Second Circuit.

said Chapter, which agreement expired April 30, 1963; and

it is further

Orperep that defendant American Airlines, Inc., shall

deduct and remit to the American Airlines Chapter, Flight

Engineers’ International Association, AFL-CIO, dues pay-

ments in the amount which was to be deducted and remitted

between May 1, 1963, ond the date of this Order; and it is

further

Orpverep that until (a) the final hearing and judgment

CP 2! At LAGE

herein or (b) the controversy has been finally acted upon as —

required by Section 5 of the Railway Labor Act (45 U.S. C.

§155), by National Mediation Board, unless a period of ten

days has lapsed after termination of conferences without

request for or proffer of the services of the Mediation

Board, whichever first occurs, defendant American Air-

lines, Inc. shall continue the deduction and remittance of

dues in accordance with said dues check-off agreement ;

and it is further

Orperep that defendant American Airlines, Inc., by and

through its duly authorized officers, agents, and employees,

"shall treat with the American Airlines Chapter, Flight

Engineers’ International Association, AFL-CIO, and exert

every reasonable effort to settle any controversy or dispute

- with said Chapter concerning the check-off of dues and

whether there should, or should not, be an agreement there-

for between the parties; and it is further

(471) Orperep that under Fed. R. Civ. P: 65( ce) plain-

tiffs are to give security in the form of a bond, with cor-

porate surety, to be approved by the Court in the sum of

two hundred and fifty dollars ($250) conditioned for the

‘payment of such costs and damages as may be incurred or

suffered by any party found to have been wrongfully

enjoined or restrained.

Dated: New York, New York

September 16, 1963

Ivzer B. Wyatt,

United States District Judge

eT AIP ere. |

ee ee

Statutory Provisions. rama

Railway Labor Act, Section 201 (49 Stat. 1189, 45 U.S. C.

§181):

‘*All of the provisions of Sections 151, 152, and

154-163 of this title are extended to and “shall

cover every common carrier by air engaged in

interstate or foreign commerce, and every carrier

by. air transporting mail for or under contract with

the United States Government, and. every air pilot or

other person who performs any work as an employee

or subordinate official of such carrier or carriers, sub-

ject to its or their continuing authority to supery ise

and direct the manner of rendition of his service.’’ .

Railway Labor Act, S« tion 2 2 (44 Stat. 577, 48 Stat. 1186,

62 Stat. 909, 64 Stat. 123s, 45 U.S. C. £152):

‘First. It shall he the duty of all carriers, their

officers, agents, and employees to exert ev ery reason-

able effort to make and maintain agreements concern-

ing rates of pay, rules, and working conditions, and |

to settle all disputes, whether arixing out of the appli-

cation of such agreements or otherwise, in order to

avoid any interruption to commerce or to the opera-.

. tion of any carrig@.growing out of any dixpute

between the carrier hens the employees thereof.’

‘‘Fourth. Employees ‘shall have the right to

organize and bargain collectively through represen-

tatives of their own choosing. The majority of any

craft or class of employees shall have the right to

determéene who shall be the representative of the craft

or class for the purposes of this chapter. No carrier,

its officers, or agents shall deny or in any way ques-

tion the right of its employees to join, organize, or

assist in organizing the labor organization of their

choice, and it shall be unlawful for any carrier to

interfere in any way with the organization of its

10¢

Statutory Provisions.

_employees, or to use the funds of the carrier in main-

' taining or assisting or contributing to any labor

organization, labor representative, or other agency of

collective bargaining, or in performing any work .

therefor, or to influence or coerce employees in an

effort to induce them to join or remain or not to join

or remain members of any labor organization, or to

deduct from the wages bf employees any dues, fees,

assessments, or other contributions payable to labor

organizations, or to collect or to assist in the collec-

tion of any such dues, fees, assessments, or other con-

tributions: Provided, That nothing in this chapter

shall be construed to prohibit a carrier from permit-

ting an employee, individually, or local representa-

tives of employees from conferring with management

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

~ hibit a carrier from furnishing free transportation to

its employees while engaged in the business of a labor

_ organization.’’

* - * > *

of its employees, as a class, as embodied in

ments except in the manner prescribed in such agree-

mepts or in-section 156 of this title.’’

i *

* * ° * 4 .

“Tenth. The willful failure or refusal of any

carrier, its officers or agents, to comply with the terms

of the third, fourth, tifth, seventh, or eighth para-

graph of this section shall be a misdemeanor, and

upon conviction thereof the carrier, officer, or avent

offending shall be subject to a fine of not less than

$1,000, nor more than $°20,000, or imprisonment for

not mere than six months, or both fine and imprison-

ment, for each offense, and each day during which

such carrier, officer, or agent shall willfully- fail or

* 1c

Statutory Provisions.

refuse to comply with the terms of the said para- ;

graphs of this section shall constitute a separate

offense. It shall be the duty of any United States

attorney to whom any duly designated represen-

. tative of a carrier’s employees may apply to institute

in the proper court and to prosecute under the direc-

‘tion of the.Attorney General of the United States, all

necessary proceedinzs for the enforcement of the

provisions of this section, and for the punishment of

all violations thereof and the costs and expenses of

such prosecution shall be paid out of the appropria-

tion for the expenses of the courts of the United

States: Provided, That nothing in.this chapter shal]

be construed to require an individual employee to

render labor or service without his consent, nor shall

anything in this chapter be construed to make the

quitting of his labor by an individual employee an

illegal act; nor shall any court issue any process to

compel the performance by an individual employee of

such labor or service, without his consent.”’

‘Eleventh. Notwithstanding any other _ provi-

sions of this chapter, or of any other statute or law

of the United States, or Territory thereof, or of any

State, any carrier or carriers as defined in this chap-

ter and a labor organization or labor organizations

duly designate! and authorized to represent employ-

ees in ‘accordance with the ‘requirements of ethis

chapter shall be permitted—

(a) to make agreements, requiring, as a condition

of continued employment, that within sixty days fol-

lowing the beginning of such employment, or the

effective date of such agreemetits, whichever js the

later, all employees shall become members. of the

labor organization representing their craft or class:

Provided, That no such agreement shall require snch

- condition of employment with respect to employees

moe

DLE Oia OO yt

HMM BNE Nal IP ERL OMELET AE OAS BIL ALS OEE POSER LA EE ¢ LOSE EAT AEBS O EEE

; ; -

. e .

|

_ 12¢

’ Statutory Provisions.

-to whom membership is not available upon the same

terms and conditions as are generally applicable to

any other member or with respect to employees to

whom membership was:denied or terminated for any

reason other than the failure of the employee to

tender the periodic dues, initiation fees, and assess-

ments (not including fines and penalties) uniformly

required as a condition of acquiring or retaining

membership. | .

(b) to make agreements providing for the dedue-

. tion by such carrier or carriers from the wages of its

or their employees in a craft or class and payment to

the labor organization representing the craft or class ~

of such employees, of any periodic dues, initiation

fees, and assessments (not including fines and penal-

ties) uhiformly required as a condition of Jacquiring

or retaining membership: Provided, That no suelr

agreement shall be effective with re<pect to any indi-

vidual employee until he shall have furnished the

employer with a written assignment to the labor

organization of such membership" dues, initiation

fecs, and assessments, which shall be revocable in

writing after the expiration of one year or upon the

termination date of the applicable collective ayree-

ment, whichever occurs sooner.

(c) The requirement of membership in.a labor

erganization in an agreement made pursuant to sub-

parégraph (a) of this paragraph shali be satisfied,

as to both a present or future employee in engine,

train, yard, or hostling service; that is, an employee

engaged jn any of the services or capacities covered

in the First Division of paragraph (h) of section

153 of this title, defining the jurisdictional scope of

the First Division of the National Railroad Adjust-

ment Board, if said employee shall hold or acquire

membership in any one of the labor organizations,

-=

13e

Statutory Provisions.

national in scope, organized in accordance with this

chapter and admitting to membership employees of

a craft or class in any of said services; and no agree-

ment made pursuant to subparagraph (b) of this

paragraph shall “provide for deductions from his

wages for periodic dues, initiation fees, or assess-

ments payable to any labor organization other than

that in which he holds membership : Provided, how-

ever, That as to an. employ ee in any of said services

on a particular carrier at the effective date of any |

such agreement on a carrier, who is not a member of |

any one of the labor organizations, national in

scope, organized in accordance with this chapter

and admitting to membership employees of a craft

or class in any of: said services, such employee, as

a condition of continuing his employment, may be

required to become a member-of the organization

representing. the craft in which he is employed on the

effective date of the first agreement applicable to

him: Provided. further, That nothing herein or in

any such agreement or agreements shall prevent an

employee from changing membership from one organ-

ization to another orgar:ization admitting to member-

ship employees of a craft or class in gny of said

services, ©

(d) Any provisions in paragraphs Fourth and

Fifth of this section in-conflict herewith are to the

extent of such conflict amended.”

Railway Labor Act, Section 6 (44 Stat. 582, 48 Stat.

1197, 45 U. S: C. §156): ;

‘‘Carriers and representatives of the employees

shall give at least thirty days’ written notice of an

intended change in agreements affecting rates of

pay, rules, or working conditions, and the time and

place for y | beginning of conferénce between .the

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Statutory Provisions.

representatives of the parties inter iia in such

intended changes shall be agreed upon within ten

days after the receipt of said notice, and said time

shall be within the thirty days provided in the notice.

In every case where such notice of intended change

has been given, or conferences*are being held with

reference thereto, or the. services of the Mediation

- Board have been requested by either party, or said ~*

. Board has proffered its services, rates of pay, rules,

or working conditions shall not be altered by the

carrier until the controversy has been finally acted

upon, as required by section 155 of this title, by the

Mediation Board, unless a period of ten days has.

elapsed after termination of conferences without

request for or proffer of the services of the Media-

tion Board.”’

eee Labor Act, Section 204 (49 Stat. 1189, 45-

U.S. C. §184):

‘‘The disputes between an employee or group of

employees and a carrier or carriers by air growing

out of grievances, or out of the interpretation or

application of agreements concerning rates of pay,

rules or working conditions, including cases pending

and unadjusted on April 10, 1936 before the National

Labor Relations Board, shall be handled in the usual

manner up to and including the chief operating officer

of the carrier designated to handle such disputes;

hut, failing to reach an adjustment in this manner,

the disputes may be referred by petition of the par-

ties or by either party to an appropriate adjustment

board, as hereinafter provided, wit}, a full statement

of the facts and supporting data bearing upon the

disputes.

It shall be the duty of every carrier and of its

employees, acting through their representatives, ip

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Statutory Provisions.

selected in accordanée with the provisions of sections

181-188 of this title, to establish a board of adjust-

ment of jursdiction not exceeding the jurisdiction

which may be lawfully exercised by system, group,

or regional boards of adjustment, under the authority

of section 153\af this title. ee

Such boards of adjustment may be.established by

agreement between employees and carriers either on

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

_ riers by air and any class or classes of its or their |

employees; or pending the establishment of a per-

‘manent National- Board of Adjustment as herein-

after provided. Nothing in sections 151-163 and 181-

188 of-this title shall prevent said car ‘ers by air,

or any class or classes of their. employees, both acting

_ through. their representatives selected in accordance

with provisions ‘of sections 181-188 of this title,

from mutually agreeing to the establishment of a

National Board of, Adjustment of temporary. dura-

tion and of similarly limited jurisdietion.’’ |

Norris-LaGuardia Act, Section 7 (47 Stat. 71, 29

U. S. C. §107): aac

‘No court of the United States shall have juris-

diction to issue a temporary or permanent injunction

in any case involving or growing out of a labor 4is-

pute, as defined in this chapter, except after hearing

the testimony of witnesses in open court (with oppor-

tunity for cross-examination) in support of the alle-

gations of a complaint made under oath, and testi-

mony in opposition thereto, if offered, and except

after findings of fact by the court, to the effect—

(a) That unlawful acts have been threatened and .

will be committed unless restrained or have been

committed and will be continued unless restrained,

-but no injunction or temporary restraining order,

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¥ Statutory Provisions.

shill be issued on account of any threat or unlawful

act excepting against. the person or persons, asso-

ciation, or organization making the threat or com-

mitting the unlawful act or actually authorizing or

ratifying the same after actual knowledge thereof ;

(b) That substantial and irreparable injury to

complainant’s property will follow;

(c) That as to each item of relief granted greater

injury will be inflicted upon complainant by the

denial of relief than will be inflicted upon defendants

by the granting of relief;

(d) That complainant has no adequate remedy

at law; and

* (e) That the public officers charged with the duty

to protect complainant’s property are unable or

unwilling to furnish adequate protection.

Such hearing‘shall be held after due and personal

notice thereof has been given, in such manner as the

cvurt shall direct, to all known persons against whom

‘relief is souglit, and also to the chief of those public 7

officials of the county end city within which the un-

lawful acts have becn threatened or committed

charged with the duty to protect compluinant’s prop-

erty: Provided, however, ‘That if a complainant shall

also allege that, unless a temporary restraining

order shall ve issued without notice, a substantial and

irre} arable injury to complainant’s property will-be

unavoidable, such a temporary restraining order may

be issued upon testimony under oath, sufficient, if

sustained. to justify the court in issuing a temporary

injunction upon a hearing after notice. Such a tem-

porary restraining order shall be effective for no

longer than five days and shall become void at the

expiration of said five days. No temporary restrain-

- ing order or temporary injunction shall be issued

.

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Statutory Provisions,

except on condition that complainant shall first file

an undertaking wit h adequate security in an amount

- to be fixed by the court sufficient to recompense those

enjoined or any loss, expense, or damage caused by

the imprcvvident or erroneous issuance of such order

or injunction; including all reasonable costs (together

with a reasonable attorney’s fee) and expense of

defense against the order or against the granting of

any injunctive relief sought in the same proceeding

and subsequently denied ‘by the court.

The undertaking mentioned in this seetion shall be

understood to signify an agreement entered into by

the complainant and the surety upon which a decree

may be rendered~in the same suit or proceeding

against sajd complainant and surety, upon a hearing

to assess damages of which hearing complainant and

~ surety shall have reasonable notice, the said com-

piainant and. surety submitting themselves to the

jurisdiction of the court for that purpose. But noth-

ing in this section contained shall deprive any party

having a claim or cause of action under or upon such

undertaking from electing to pursue . his ordinary

remedy by suit at law or in equity.’

Norris-LaGuardia Act, Section § (47 Stat. 72, 29

U. S. C. §108) :

‘‘No restraining order or injunctive relief. shall

be granted to any complainant who has failed to

comply. with any obligation imposed by law which

is involved in the labor dispute in question, or who

has failed to make every reasonable effort to settle

such dispute cither by negotiation or with the aid

of any available governmental machinery of media-

tion or voluntary arbitration.’’