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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1964
- **Citation:** 379 U.S. 817

## Text

Sram Cont te Mate tas |

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~

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
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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

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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

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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

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_ 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,

-=

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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

5 APE

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14c
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

15¢

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,

—-

l6e .

¥ 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

.

17e

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.’’

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_1752%3A2. Public record. Not legal advice.