Petition for Writ of Certiorari — Konigsberg v. United States

e

“ — tt

| Office-Supreme Court, U.S.

“SIBRARY oD? - FILED

bueremr count ue SER. 22 1964

ö „22 : JOHN F. DAVIS, —

.

A Court of the United States

OCTOBER TERM. 1963

AIR LINE Pots ASSOCIATION, INTERNATIONAL, et al,

| Petitioners,

* v. N

( Auaxico AIRLINES, I dq,

é : 1 _ Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

9 THE UNITED STATES COURT OF APPEALS

: Fon THE FIFTH oe |

CHARLES J. MORRIS

1601 National Bankers Lite =

Building ee

Dallas, Texas 75201

HENRY WEISS — |

50 East 42nd Street

New York, New Lor

MAURY ‘MaveERIcK, JR

906 Maverick Building

San Antonio, Texas

2

Attorneys for Petitioners

—

REILLY PUBLISHING COMPANY — 1710 S. HARWOOD — DALLAS, TEKAS — HA 88385

—

_ SUBJECT INDEX

Opinion Below.

1 Jurisdiction

Questions Wees 8

Statute Involved . ebee

statement

Reasons for r the writ

Comelio m cceee de ccccecee . 5 %

‘AUTHORITIES CITED

Aaxico Airlines, Inc. v. Air Line Pilots Asso-

ciation, International, et al, 331 F.2d 433,

55 LRRM 2982, and 49 LC 918,886

(C.A. 5, 1964) oe)

Akron C. & V. R. Co. v. „ Barnes, 215 F. 2d

423 (C. A. 7, 1954) a

Atkinson v. Sinclair, 370 U. S. 238, 241, 8

_ L.ed: 2d 462, 82 S.Ct. 1318

Brotherhood of Railroad Trainmen v.

Howard, 343 U.S. 768, 96 L.ed. 1283, 72

S.Ct. 1022 (1952)

Burke v. Morphy, 109 F. 20 572 (CA A. 2,

1940)

Page

17

ae Page

_ Cases—(Continued) te

Manning v. American Airlines, 329 F.2d 32 3

(C. A. 2, 1964) ES Fone ENO NEEL EEE ORR. Eo 14,17

Missouri-Kansas-Texas R.R. 8 v. Locomo-

tive Engineers, 368 U.S. 528, 531, 4 L. ed. 2d

1379, 80 S. Ct. 1326 REE 18

Railway Clerks v. Atlantic Coast Line, 201

F.2d 36 (C. A. 4, 1952) cert. den. 345 U.S.

902, 73 8. Ct. 11314 17

Railway: Conductors v. Switchmen’ s Union.

269 F. 2d 726 (C. A. 5, 1959) 5 16

Railroad Yardmasters v. weer es Rail- | F

road Co., 224 F.2d 226 (C. A. 3, 1955) 16, 17

Railroad Yardmasters v. St. Louis, San Fran-

cisco & Texas Ry. Co., 328 F.2d 749, (C.A.

5, 1964) cert. den. June 15, 1964, —US—;

12 L.ed.2d 748, 84 S.Ct. 1888 1

Rolfes v. Dwellingham, 198 F.2d 591 1 (Cu A.

a 1952). <a tl PEE NDS 3

Rumbaugh v. Winifrede R. R. Co., 331 p. 2d .

530 (C. A. 4, 1964), cert. filed July 15, 1964 .

(Oct. Term, No. 782) OEE eee eee 17

Southern Railway Co. v. Brotherhood of

. Lotomotive Firemen and Enginemen,

F.2d —, 56 LRRM 2742, 50 L.C. 110,119

(C. A. D.C., 1964) e e 1

Switchmen’ s Union of North — 209

F. 2d 419, (C. A. 10, 1954), cert. den. 347

U.S. 989 eee e eee 8 16

"Authorities Cited-—-(Continued)

-en

Telegraphers v. Railway Express Co., 32 US.

342, 88 L. ed. 788, 64 S. Ct. 582 (1944)

Texas & N. O. R. Co. v. Railway Clerks, 281

U.S. 548, 50 S.Ct. 427 2

United Steelworkers v. Warri on & Guf Navi- |

gation Co., 363 U.S. 574, 82 4 Led.2d

1409, 80 S.Ct. 1347 N

ace Virginia Railway Co. v. n Wand

300 U.S. 515, 57 S. Ct. 592, 81 L.ed. :

789 (1937)

wiley & Sons v. Livingston, 376 U.S. 543,

11 L. ed. 2d 898, 902, 84 S.Ct. — .

ad

Statutes: roi

5 Laborklanagement Relations Act [29 U.S. 5p) |

85 (a)] Section 301 (a)

Railway Labor Act (44 Stat. L. 577, 48 stat. |

1185, 49 Stat. 1189, 45 U.S.C. 8151 et ed. 4

Section 2, first 12

Section 2, seventh 12 .

Section 2, ninth | | :

Sections 2, 3, 10, 1. 12. 13, 14, 15

28 US.C. 91254 (1)

(C.\

2

17

16

16

11

2

— — —

8 : ‘Supreme Court of the United. States

SEE

Am LINE Puors ASSOCIATION, INTERNATIONAL, et al,

7 | Petitioners,

7 4 is v. 2 . ‘

;;ö; NES, INC., ,

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT.

Air Line Pilots Association, International, by its

president and 90 individual petitioners,’ represent-

ft

Richard Witkowski, M. K. Sidman, J. W. Haralson, Irwin F. Klumb,

John T. Laney, Luther J. Smith, Ir., Bill M., Burke, W. D. Grainger, Nyle

A. Chandler, Frank H. Sobey, R. R. Hickerson, Stanley A. Karpowicz, Sam-

uel E. Terry, C. V. Mitchell, John R. Rodgers, E. D. Cowan, D. T. Wil-

son, O. I. Thorson, Thomas P. Leigh, B. B. Thomas, C. E. Anderson, S. T.

Gillmor; Virgil A. K innison, Arthur R. Boden, John K. Riley, Guido V. Be-

Brandon F. Jones,

Hagan, Phil Steen, W. A. Fowler, Raymond I. Craig, Kenneth W. Camp,

Charles M. Rowe, A. G. Young, Ernest J. Anderson, Charles F. Jack-

. Barner; Arthur E. Fehr, A. Denzer, James D. McClure; George

N. Olsen, S. L. Ballif, Geo. J. Vizard,: John H. Wood, LeRoy F. Lovegrove, Jr.,

George I. Budde, Paul O. West, Duncan J. Cameron, G. H. Edde, C. S.

Jaruagin, Charles G. Herrick, R. E. Conrad. R. A. Juengermann, E. N. Sim- .

mons, Charles M. Daly, James E: Taylor, Kenneth W. Myers, O. L. Howell,

A. E. Chappell, Alvin A. Knox, Harold K. Snyder, Stephen I. Szabolscky,

Dennis S. Matthews, John G. Gray, David W. Mathews, S. S. Osborne, Don

V. Deming, John E. Dayhuff, James N. Collins, J. I. Lovvorn, D. H. Guinn,

O. V. Gos wick, Milton M. Clark, James V. Allred.

2

ing a class of 221 pilots, respectfully pray that a

writ of certiorari issue to réview the judgment of

‘the United States Court of Appeals for the Fifth

Circuit entered in the above case on April 15, 1964.

Their timely Petition for Rehearing In Banc was

_ overruled on July 10, 1964.

The opinion of the Court of Appeals is printed in

Appendix B hereto, infra pp. 9a-21a. It is reported

at 331 F. 2d 433, 55 LRRM 2982, and 49 LC 118,886.

The judgment of the Court of Appeals was en-

tered on April 15, 1964 (R. 829). The jurisdiction

of this Court is invoked under 28 U.S.C. §1254(1).

‘ Questions — ted ,

1. Does a federal court have jurisdiction under

the Railway Labor Act to issue an injunction re-

quiring an air carrier to maintain the terms and

conditions of employment and rates of pay embod-

ied in a current collective bargaining agreement,

pending exhaustion of Section 6 procedures? =

2 Does a federal court have jurisdiction under

_ the Railway Labor Act to determine whether a col-

lective bargaining agreement has been. terminated?

3. In a case involving both violations of the Rail-

way Labor Act and breach of a collective bargain-

ing agreement, does a federal court have jurisdic-

tion to remedy the statutory violations by enjoining

an air carrier (1) from making unilateral changes

in rates of pay, rules and working conditions, (2)

from refusing to recognize and bargain with the

certified representative of the class or craft, (3) by

requiring the carrier to give effect to all provisions

of the agreement, and (4) by requiring the car-

rier to join in establishing a system board of adjust-

ment to function under said agreement? ,

1 0 ;

4. Does a federal court have jurisdiction under

the Railway Labor Act to construe a collective bar-

gaining agreement to the extent necessary to deter-

mine whether a carrier’s unilateral changes have

created a major dispute because they constituted

changes in rates of pay, rules, or working condi-

tions of employees. as a class and were not gov-

erned by the terms of the agreement?

5. Assuming the prior termination of a collec-

tive bargaining agreement, does the Railway Labor

Act require adherence to the provisions of said

agreement pending exhaustion of Section 6 proce-

_ dures, and does a federal court have jurisdiction

‘to issue an injunction to this effect?

6. Assuming exclusive jurisdiction of a system

board of adjustment to decide claims under a col-

lective bargaining agreement, does a federal court

have jurisdiction to issue an injunction to restore

and maintain the status quo pending resolution of

such claims by the board of adjustment?

7. May an air carrier avoid its obligations un- 2

4

der the Railway Labor Act by the device of con-

tracting with a pilot supply company for all its

_ pilots, whereby said pilots are carried on the pay-

rell of the supply company but fly regularly and

exclusively for and under the direction and con-

trol of the carrier? ä .

Statute Involved

The statute involved and referred to herein is the

Railway Labor Act (44 Stat. L. 577, 48 Stat. 1185,

49 Stat. 1189, 45 U.S.C. 88151, et seq.), pertinent

provisions of which are set out verbatim in Ap-

pendix A hereto, pp. 1a-8a.

i e

1 *

Statement

The facts of this cade are not in dispute. This

was evidenced by the District Court’s entry. of

summary judgment on stipulated and admitted

facts and the acceptance of the Distri >t Court's

findings of fact [R. 678-690] by the Court of

Appeals, although the Court of Appeals failed to

note certain material facts included in the following

statement. ö

„Aaxico had for several years conducted an air

transportation business with the use of C- 46 aircraft

on the basis of contracts with the United States

Government. Beginning on June 16, 1956, Aaxico

and ALPA had been parties to a collective bargain-

ing agreement covering the employees flying its ,

5

aircraft.- The most recent of the collective bar-

gaining agreements between the parties became

effective on January 1. 1960. It provided that it

was to continue in full force and effect until June

30, 1961, ‘and thereafter, until each succeeding

June 30, unless written notice of intended change

is served in accordance with Section 6, Title 1 of

the Railway Labor Act by either party thereto at

least 60 days prior to June 30, 1961, or June 30 of

any succeeding year.’ Prior to the expiration date

of the last agreement... on the occasion of Aaxico’s .

losing its Logair (Government) contract as of June

30, 1960 . . . Aaxico furloughed all of its approxi-

mately 221 pilot employees by giving them two

weeks’ notice as required under the agreement.

The notice contained the statement, ‘We cannot, at

this time, see any possibility of a resumption of

our Logair flying but if any change should take

place you will be promptly notified.’

“Thereafter, although Aaxico had no other air

transportation business to carry on until it was

able to obtain further. or new contracts, it did not

‘dissolve but maintained a skeleton organization

principally engaged in seeking new contracts in-

cluding an effort to bid on the following year’s

Logair contract.“

On Hetober 17, 1960, Aaxico’s president, Howard

Korth, wrote ALPA stating that “Aaxico Air-

lines has ‘suspended ‘service q. II ne subject

2ALPA had been certified by the National Mediation Board as the representa-

tive of the class or craft of airline pilots in the service of Aaxico.

Opinion, pp. 10a-1la, infra.

3

matter of the agreements . . . no longer exists and

therefore Aaxico Airlines considers these agree-

ments terminated and of no further legal force and

effect.“ [R. 48] ALPA's president, Clarence N.

Sa yen, replied by letter of November 8:

6 . . So long as AAXICO remains inoperative,

this document lies dormant. In the event that

operations of the Company are resumed, how-

ever, within the period in which AAXICO pilot

employees have job tenure* under this Agree-

ment, this Association would require their re-

employment by the Company. Additionally,

even though reactivation of operations by

AAXICO occurs at some future date after

present pilot employees have lost their tenure

of.employment under the Employment Agree-

ment now in effect, ALPA is still the certified

bargaining agent of the class and craft of pilot

employees of AAXICO, and as such, would ex-

pect the Company to deal with the Association

accordingly.” [R. 49-50]

Korth did not challenge Sayen’s interpretation of

the agreement or his statement of Aaxico’s con-

tinuing obligation to treat with ALPA as the certi-

fied representative of Aaxico’s pilots. Indeed,

Aaxico made no reply whatever. The Court of

Appeals; however, with benefit of hindsight, com-

ments that. . if the question of the termination

of the contract had been resolved in the fall of 1960

at a time when no pilots were employed or sought

to be employed by Aaxico, this whole dispute might

well have been resolved before the commencement

Four years under the agreement IR. 37, Section 24A.

7

of the operations by the use of new equipment

July 1, 1961.” But during the fall of 1960 Aaxico

was not operating and there was nothing of sub-

stance to dispute about. In June and July of 1961,

however, a serious dispute developed. 3

In the spring of 1961 Aaxico began preparing

for a bid on a new government contract: And by

the time it filed its formal bid on May 19, 1961, it

had already agreed to obtain flight crews from one

Barry Paul Vaughn, operating as the Aerial Serv-

ice Corporaticn (ASCO) [R. 683], but it had made

no effort to contact either ALPA or the furloughed |

employees. [R. 173, 680-681]. Aaxico was awarded

the government contract on June 2, 1961, with

final approval granted after operations began on

July 1, 1961. This and other contracts have since

been renewed with some modifications [R. 683-684].

The new flight operations, which began on July 1,

1961, called for use of DC-6 aircraft. The collective

bargaining agreement contained pay scales for DC-6

operations and provided for recall and qualifying’

of pilots [R. 37, pp. 4 et seq., pp. 19-24], and also

provided that vagancies would be posted. . as

far in advance as practical but in no case later than

thirty (30) days after the vacancy exists or it is

determined that a vacancy will exist.” [R. 37, p. 20}. ©

Aaxico ignored these ‘and other provisions of the

agreement and instead entered into a written con-

tract with Vaughn’s pilot supply company (ASCO)

and with a California company called IASCO in

June, 1961, under which ASCO and IASCO agreed,

for a percentage of payroll surcharge, to refer

8

flight personnel who would remain on the pilot

supply company payroll but who, on acceptance by

Aaxico, would operate the aircraft under the direc-

tion and supervision of Aaxico.* [R. 684-689]. It

has been respondent's position throughout this liti-

gation [R. 603] that such pilots are not its employ-

ess; however, the District Court found that they

were employees of Aaxico IR. 690-691], and the

Court of Appeals agreed that we can assume [the

pilot supply companies] amounted to nothing more

or less than a service agent for the employment of

pilots by the Airline itself.“ :

Since June, 1961, -Aaxico has made no effort to

apply the union agreement [R. 604-605], nor has

it complied with any of the notice or bargaining re-

quirements of the Railway Labor Act, although it

has changed wages and working conditions of its

pilots numerous times [R. 139, 173, 208-212, 252

255, 321, 688, 780-783]. ö 5

It was stipulated that the first notice which Aaxico

gave its furloughed pilots that flight operations had

resumed was a letter dated July.18, 1961, [R. 681]

which letter, however, did not offer recall or bid

rights. Two days later ALPA filed a group griev-

_ ance protesting respondent’s violation of the agree-

ment, ‘specifically including the refusal to recall

furloughed pilots. Aaxico refused to consider the

grievance, whereupon ALPA. filed an appeal, to

which Aaxico made no reply [R. 685]. Aaxico’s

president testified that’ he was not willing to settle

Ss During the pendency of this appeal Aaxico resumed some C-46 operations

and later converted back to all DC- operations. During the latter changeover

Aaxico provided «raining to qualify C-46 pilots for DC-6 operations.

° * 5 .

‘this dispute through the grievance procedure of

the contract, including a system board of adjust-

ment; he testified that a system board no longer

existed [R. 182].° .

Petitioners filed this action for declaratory judg-

ment, injunetive relief, and damages’ in the United

States District Court on August 8, 1961. Respondent

filed four motions to dismiss, none of which raised a

jurisdictional question regarding alleged failure of

petitioners to obtain a system board determina-

tion of the dispute." [R. 55, 67, 77, 513]. The prin-

cipal issue in the trial court concerned Aaxico’s

continued denial that it was subject to the provi-

sions of the Railway Labor Act [R. 596]. The Dis-

triet Court found that its operations were covered

by said Act, and respondent did not appeal from

that ruling. Aaxico also contended that its letter

of October 17, 1960, constituted a termination of

the agreement, although the agreement made no

provision for termination, it being subject to the

requirements of the Railway Labor Act for chang-

ing rates of pay, rules, and working conditions. The

„The non-existence of a system board of adjustment was also noted by the

District Court: the court's injunction specifically ordered Aaxico to join with

ALPA “in establishing a system board of adjustment” {R. 649}, from which

portion, of the order Aaxico did not appeal. :

7The court did not award damages directly, holding instead that the system

board of adjustment, which it ordered established, has jurisdiction of the pilots’

claims for loss of earnings (R. 646).

„All four.motions were overruled, and no appeal was taken as to the issues

raised therein. Aaxico did not assert the defense of primary jurisdiction of the

system board of adjustment until a full year after the case was filed, at which

time petitioners invited submission of the dispute to a system board, which

respondent refused. IR. 805]

10

trial court concluded, on undisputed facts, that

Aaxico failed to give proper notice under the col-

. lective bargaining agreement and the Railway

Labor Act to change the terms and conditions of

the plaintiff pilots’ employment,” and “[s]Jince the

defendant failed to modify the collective bargain-

ing agreement in accordance with either Section 3,

paragraph 4, or Section 32 thereof, said agreement

automatically renewed itself and is presently in

effect.” a” 690]°

In addition to resolving that i issue, the trial court:

found that Aaxico had violated the status quo

provisions of the Act, that it had refused to treat

and bargain with the certified representative of its

pilot employees, that it had engaged in individual

bargaining with its employees, and that it. had

recognized and bargained with persons (ASCO and

IASCO) who were not certified representatives of

the employees. [R. 688-689]. The District Court

then fashioned an appropriate remedy which rec-

ognized the delicate balance to be maintained be-

tween the. jurisdiction of the court and the juris-

diction of the system board. It issued an injunc-

tion which required Aaxico (1) to treat with ALPA,

-(2) to cease bargaining or treating with non-certi-

Among other defects in the notice, Aaxico failed to arrange a conference

within ten days or to hold such a conference within 30 days, as required by the

contract and Section 6 of the Act. Furthermore, the sole reason which Aaxico

advanced fur “considering” the agreement terminated was that its operations had

terminated. But, as found by both the District Court and the Court of Appeals,

the company “did not dissolve” and by June, 1960, the reason had ceased to

_ exist—it had a new government contract and it has operated continuously ever

since.

a

ec

11

fied representatives, (3) to.restore the wages and

conditions which prevailed before the unilateral

changes were made, (4) to refrair from making

any future changes except in accordance with re-

quirements of Section 6 of the Act, and (5) to join

with ALPA in establishing a system board of ad-

justment. The order went no further than was nec-

essary to restore the status quo, require recogni-

tion of the certified representative, and reassert the

validity of the agreement. Although the injunction

‘required Aaxico to‘compl\ with the agreement, thc

order to comply was general in nature—any dis-

putes regarding compliance were left to the parties

and to the system board. The court’s order thus

recognized that the real issue was never whether the

unilateral changes violated the collective bargain-

ing agreement, for Aaxico had admitted in its an-

_ swer that its pilots “are not being paid in accord-

ance with the collective bargaining contract with

ALPA” and “that it does not consider itself bound

by the provisions of the ALFA | contract. Pg

[R. 604, 606].

The Court of Appeais, however, notwithstanding

petitioners’ efforts to,obtain clarification by rehear-

ing, ignored those portions of the District Court's

order, with corresponding remedy, which related to

- violations of the Railway Labor Act and dealt with

(1) the duty of a carrier to “treat with” the certified

representative of the employees “for the purposes

of this Act,” i. e., for settlement of disputes and for

collective barging S2, ninth], (2) the duty of the

carrier “to make and maintain agreements concern-

12

ing rates of pay, rules, and working conditions [ 52,

first], and (3) the requirement that [no] carrier

shall change the rates of pay, rules, or working con-

ditions of its employees, as a class, as embodied in

agreements except in the manner prescribed in such

agreements or in section 6 of this Act.” [§2,

seventh]. ; dies. i |

The Court of Appeals viewed the question of

termination of the collective bargaining agreement

an central to the case, and held that this question

® could be decided only by interpreting the

ent itself and thus it was a minor dis-

pute, one which under the completely uniform

holdings of the courts’ must be submitted to

the grievance procedures with final decision

to be made by the System Board of Adjustment. :

We conclude, therefore, that it was beyond the

competence of the trial court to resolve this

dispute.”

_ Reasons for Granting Writ

1. The decision of the Court of Appeals refusing

to allow an injunction to protect the status quo

where a carrier is making unilateral changes in

rates of pay, rules, or working conditions conflicts

with the decision of the Court of Appeals for the

District of Columbia Circuit in Southern Railway

Co. v. Brotherhood of Locomotive Firemen and

Enginemen, —— F. 2d ——, 56 LRRM 2742, 50 L. C.

119,119, decided: July 14, 1964, in which that court

1QNo cases were cited.

’ certiorari denied June 15, 1964,

13

held, notwithstanding the limited necessity of con-

struing the contract, that Nae b

“With respect to this ‘claim’ (count) of the

complaint, we think that the District Court

was clearly correct in <njoining any effort by

Southern to effectuate a change in the working

practice under its contract, ‘prior ‘to 1960, of

operating all locomotives with a fireman pres-

ent in the cab pending a modification or change

of that contract in accordance with the Act.

And further in this particular we are equally -

clear that the injunction under this ‘claim’ must

forbid also a change in the long-standing inter-

pretation in this respect which had been given

by the parties to the existing contract. To

allow a change in the construction of the con-

tract in the way sought here would in substance

and effect ge the contract itself, as acted

upon and applied by the parties from the be-.

ginning. As the District Court said, to permit

this would subvert the purpose and intent of

Section 6 of the Act.? ot

*

2. The decision below that the question concern-

ing termination of the collective bargaining agree-

ment could be decided only by interpreting the

agreement itself and thus was a minor dispute,“

announces a proposition of law which is contrary

to the language of Section 6 and which directly ..

conflicts with the decision of the Court of Appeals

11 The Court's attention is also directed to the Fifth Circuit decision in Rail-

road Yardmaster v. St. Louis, San Francisco & Texas Ry. Co., 328 F. 2d 749,

U.S. 12 L.ed2d 748, 84 S.Ct.

1886, which was cited by the Court of Appeals in the instant case. It.too con-

flicts with the decision of the D. C. Circuit in the Southern Ry. case.

>

14

for the Second Circuit in Manning v. American Air-

lines, 329. F.2d 32, in which petition for certiorari

was filed on May 13, 1964, and which is now pending

(October Term, 1963; No. 79). .The petition for

certiorari thereirf expressly recognized and relied

on this conflict (pp. 7-8).

*

Neither the agreement in the instant case nor

Section 6 provided for termination of the agree-

ment, and, under established interpretation of the

Act, as noted in Manning v. American Airlines,

The effect of §6 is to prolong agreements sub-

_ ject to its provisions regardless of what they

say as to termination. [T]he very purpose

of §6 is to stabilize relations. by artificially

extending the lives of agreements for a limited

period regardless of the parties’ intention.”

329 F.2d 32, 34. |

Implicit . in the opinion below is the erroneous

premise that if the contract did in fact terminate,

the rights and responsibilities of the parties there-

under also terminated. But the scheme of the Rail-

way Labor Act does not permit a contractual hia-

tus at least not until after elaborate bargain- .

ing ‘and mediation procedures have first been ex-

hausted. The parties recognized this in Section 32

of their agreement, which omitted provision for

termination as such but provided for contract

changes when notice was served in accordance

with Section: 6, Title I of the Railway Labor

Act....” The trial court thus made its determina-

tion on the basis of Section 6 of the statute, not-

15

withstanding that such section was incorporated .

by reference in the parties’ agreement.

At the very least, it should have been a moot

question whether or not. the agreement was ter-

minated, for even assuming termination, the terms

and conditions of employment and rates of pay

embodied in the agreement should have been main-

tained pending exhaustion of Section 6 procedures

designed to effect the changes. After June, 1961,

however, Aaxico made no pretence of following any)

Railway Labor Act procedures. yee

Another reason under this point is found in the

inconsistent language appearing at the end of

Judge Tuttle’s opinion. He commented that if the

parties had raised a grievance in the fall of 1960

- “this whole dispute might well have been

- resolved ..-.,” but he also recognized that petition-

ers might have had to seek judicial assistance if

( “they were unable to pursue their grievance proce-

dures because of the failures on the part of the ap-

pellant to make such processes available.” Yet cu-

riously he gave the District Court a choice in the fall

of 1960 which he inexplicably denied the same court

in the summer of 1961. His dicta read as. follows:

“Thereupon the trial court could promptly

have resolved this issue either by directing

submission of the questions to the grievance

‘procedures or by holding that the appellees

no longer had such rights.” (Emphasis added)

_ 12The only cited authority was reference to completely uniform holdings,”

none of which were identified by the Court.

16

But the Bistriet Court could hold that the appel-

_ lees “no longer had such rights” only if the court

_ “interpreted” the contract and found that Korth's

letter of October 17 was an effective termination

of the agreement. By the same reasoning, the

same option should have been available to the trial

court after the grievance was filed on July.20, 1961.

Furthermore,.in ruling that the agreement had .

not been terminated, the trial court was but deter-

mining the validity of the underlying agreement —

a function of the court and not of the adjustment

board. Railroad Yardmasters v. Pennsylvania Rail-

‘road Co., 224 F. 2d 226 (C. A. 3, 1955) ;Railway -

* Conductors v. Switchmen’s Union, 269 F. 2d 726

(C. A. 5, 1959); Brotherhood of Railroad Trainmen -

v. Howard, 343 U.S. 768, 96 L. ed. 1283, 72 S. Ct.

1022 (1952); Switchmen’s Union of North America

v. Oyden Union Ry. ck Depot Co., 209 F.2d 419

(C. A. 10, 1954), cert. den. 347 US. 560

The Fifth Circuit view , therein that determining

the underlying existence or validity of the collective

bargaining contract is a function to be performed

exclusively by the adjustment board is also con-

trary to the reasoning and the holdings of this

Court in parallel cases involving arbitration under

Section 301(a) of the Labor Management Relations

Act. [29 U.S.C. 8185 (a)] Wiley ck Sons v. Livings-

ton, 376 U.S. 543, 11 L. ed. 2d 898, 902, 84 S. Ct.

(1964). Cf. United Steelworkers v. Warrior & Gulf

Navigation Co., 363 U.S. 574, 582, 4 L. ed. 2d 1409,

17 2

2 38 5 . N

80 S. Ct. 1347; Atkinson v. Sinclair, 370 U.S. 238,

241, & L. ed 2d 462, 82 S. Ct. 1318. :

3. The decision below denies to the. federal

courts their traditional equity jurisdiction to enjoin

carriers from violating the bargaining and status

quo provisions of the Railway Labor Act. Virginia

. Railway Co. v. System Federation, 300 U.S. 515, 57

S.Ct. 515, 57 S.Ct. 592, 81 L. ed. 789; Burke v. Morphy.

109 F.2d 572 (C.A. 2, 1940) ; Rolfes v. Dwellingham,

198 F.2d 591 (C.A. 8, 1952); Telegraphers v. Rail-

way Express Co., 32 U.S. 342, 88 L. ed. 788, 64 S.Ct.

582; Railroad Yardmasters v. Pennsylvania Rail-

road, supra; Railway Clerks v. Atlantic Coast Line,

201 F.2d 36 (C. A. 4, 1952), cert. den. 345 U.S. 992.

73 S.Ct. 1131; Akron C. & F. R. Co. v. Barnes, 215

F.2d 423 (C. A. 7, 1954); Manning v. American Air-

lines, supra; Southern Railway Co. v. Locomotive

_Firemen and Enginemen, supra.

Even if the system board of adjustment had been

in existence with appropriate jurisdiction, it would

have had neither the means nor the authority to

restore and maintain the status quo by injunctive

process. Only the District Court could protect the

parties pending final determination by the adjust-

ment board. And certainly the adjustment board

had no jurisdiction to find or to remedy violations

of statutory duties. Teras & N. O. R. Co. v. Rail-

way Clerks, 281 U.S. 548, 50 S.Ct. 427; Rumbaugh

v. Winifrede R. R. Co., 331 F.2d 530 (C.A..4, 1964),

cert. filed July 15, 1964 (October Term, 1963, No.

282). 7 i

18

4. Tue Court of Appeals erroneously held that

the extent of petitioners’ rights after the exchange

of correspondence in the fall of 1960 “was to pre- 3

sent their contention to the district court that they

were unable to pursue their grievance procedytes

because of stated failures on the part of the ‘appel-—

lant to make such process available” But such

facts (undisputed) had already been presented to

the trial court and “indicated a refusal by Aaxico

to process the grievance. In any event, therefore,

petitioners were entitled to an in junction maintain-

ing the status quo pending resolution of their claims

by the system board of adjustment. The · injunc-

tion accomplished this end, and was in accord with

the holding in Missouri-Kansas-Texas R. R. Co. v

Locomotive Engineers, 363 U.S. 528, 4 L.ed. 2d

1379, 80 S.Ct. 1326, which affirmed the issuance of

an injunction against a strike over a minor dispute

containing conditions requiring maintenance of the

status quo pending resolution of the dispute by

the board of adjustment. The exact question now

posed (Question 6, herein) is the question which

this Court expressly reserved in footnote 3 of the

M x. T. case:

“We did not decide in Chicago River, and

we do not decide here, whether a federal court

can, during the pendency of a dispute before

the Board, enjoin a carrier from effectuating

the changes which gave rise to and constitute

the subject matter of the dispute, independ-

ently of any suit by the railroad for —

relief. ” 363 U. 8. 528, 531.

19

5. The Court of Appeals accepted the trial

court's findings and conclusions that the pilots

supplied by ASCO and IASCO were employees of

Aaxico. Nevertheless, the device of contracting for

alleged non-employee pilots represents a subter-

fuge which should be reviewed in order to preserve

the integrity of the provisions of the Railway Labor

Act guaranteeing representation and bargaining to

a carrier’s employees.

| Conclusion

For the above reasons, petitioners pray that a

writ of certiorari be granted.

Respectfully submitted,

CHARLES J. MorRIsS. .

1601 National Bankers Life

Building

Dallas, Texas 75201

HENRT WEISS

50 East 42nd Street

New York, New York

MAURY MAVERICK, JR.

906 Maverick Building

San Antonio, Texas

. Attorneys for Petitioners

September 22, 1964

APPENDICES

1a

_ APPENDIX A

The relevant provisions of the Railway Labor Act

(44 Stat. L. 577, 48 Stat. 1185, 49 Stat. 1189, 45

U.S.C. §§151, et seq.) are as follows:

TITLE I

„

Sec. 2. GENERAL PURPOSES — The e a

of the Act are:

(1) To avoid any interruption to commerce or

to the operation of any carrier engaged therein;

(2) to forbid any limitation upon freedom of asso-

- ciation among employees or any denial, as a condi-

tion of employment or otherwise, of the right of

employees to join a labor organization; (3) to pro-

vide for the complete independence of carriers and

of employees in the matter of self-organization:

(4) to provide for the prompt and orderly settle- .

ment of all disputes concerning rates of pay, rules,

or working conditions; (5) to provide for the

prompt and orderly settlement of all disputes grow-

ing out of grievances or out of the interpretation or

application of agreements covering rates of pay,

rules, or — conditions.

GENERAL DUTIES

First. It shall be the duty of all carriers, their

officers, agents, and employees to exert every rea-

sonable effort to make and maintain agreements

3

2a

concerning rates of pay, rules, and working condi- ;

tions, and to settle all disputes, whether arising out

of the application of such agreements or otherwise,

in order to avoid any interruption to commerce or

to the operation of any carrier growing out of an- cas

dispute between the carrier and the —

thereof. |

Second. All dail between a carrier or car-

riers and its or their employees shall be considered,

and, if possible, decided, with all expedition, in con-

ference between representatives designated and au-

thorized so to confer, respectively, by the carrier

or carriers and by the employees thereof interested

in the dispute.

Third. Representatives, for the purposes of this

Act, shall be designated by the respective parties

-without interference, influence, or coercion by either

party over the designation of representatives by the

other; and neither party shall in any way interfere

with, influence, or coerce the other in its choice of

representatives. Representatives of employees for

the purposes of this Act need not be persons in the

@niploy of the carrier, and no carrier shall, by inter-

ference, influence, or coercion seek in any manner

to prevent the designation by its employees as their

representatives of those who or which are not em-

ployees of the carrier.

Fourth. Employees shall have the right to or-

ganize and bargain collectively through representa-

tives of their own choosing. The majority of any

craft or clam of employees shall have the “emt to

3a

determine who shall be the representative of the

craft or class for the purposes of this Act. No car-

rier, its officers or agents, shall deny or in ahy way

question the right of its employees to join, organ-

ize, or assist in organizing the labor organization of

ttheir choice: and it shall be unlawful for any carrier

to interfere in any way with the organization of its

employees, or to use the funds of the carrier in

maintaining or assisting or contributing to any

labor organization, labor representative,

Sixth. In case of a dispute between a carrier

or carriers and its or their employees, arising out

of grievances or out of the interpretation or appli-

cation of agreements concerning rates of pay, rules,

or working conditions, it shall be the duty of the

designated representative or representatives of

such carrier or carriers and of such employees,

within ten days after the receipt of notice of a

desire on the part of either party to confer in re-

spect to such dispute, to specify a time and place at

which such conference shall be held: Provided, (1)

That the place so specified shall be situated upon

the line of the carrier involved or as otherwise mu-

tually agreed upon; and (2) that the time so speci-

fied shall allow the designated conferees reasonable

opportunity to reach such place of conference, but

shall not exceed twenty days from the receipt of

such notice: And provided further, That nothing

in this Act shall be construed to supersede the pro-

visions of any agreement (as to 2 then

in effect between the parties.

4a -

8 Seventh. No carrier, its officers, or agents shall

change the rates of pay, rules, or working condi-

tions of its employees, as a class as embodied in

agreements except in the manner prescribed in such

agreements or in section 6 of this Act.

_ Eighth. Every carrier shall notify its employees

by printed notices in such form and posted at such

times and places as shall be specified by the Media-

tion Board that all disputes between the carrier.

and its employees will be handled in accordance

with the requirements of this Act, and in such

notices there shall be printed verbatim, in large

type, the third, fourth, and fifth paragraphs of this

section. The provisions of said paragraphs aré here-

by made a part of the contract of employment

between the carrier and each employee, and shall

be held binding upon the parties, regardless of any

other express or implied agreements between them.

Ninth: If any dispute shall arise among a car:

rier’s employees as to who are the representatives

of such employees designated and authorized in

accordance with the requirements of this Act, it

shall be the duty of the Mediation Board, upon re-

quest of either party to the dispute, to investigate

such dispute and to certify to both parties, in writ-

ing, within thirty days after the receipt of the invo-

cation of its services, the name or names of the

individuals or organizations that have been desig-

nated and authorized to represent the employees

involved in the dispute, and certify the same to the

carrier. Upon receipt of such certification the car-

rier shall treat with the representative so certified

5a

as the representative of the craft or — for the

purposes of this Act. . |

* * *

Sec. 3. First. There is hereby established a

Board, to be known as the National Railroad Ad-

justment Board,” the members of which shall be

selected within thirty days after approval of this

; Act, and it is hereby provided —

* * *

(i) The disputes between an employee or group

of employees and a carrier or carriers growing out

of grievances or out of the interpretation or applica-

tion of agreements concerning rates of pay, rules,

or working conditions, including cases pending and

unadjusted on the date of approval of this Act, shall.

be handled in the usual manner up to and including

the chief operating officer of the carrier degignated

to handle such disputes; but, failing to reach an

adjustment in this manner, the disputes may be

referred by petition of the parties or by either party

to the appropriate division of the Adjustment Board

with a full statement of the facts and all —

data * upon the disputes.

99 0 *

Second Nothing in this section shall be con-

strued to prevent any individual carrier, system, or

group of carriers and any class or classes of its or

their employees, all acting through their representa-

tives, selected in accordance with the provisions of

this Act, from mutually agreeing to the establish-

ment of system, group, or regional boards of adjust-

ment for the purpose of adjusting and deciding dis-

6a

putes of the character specified in this section. In

the event that either party to such a system, group,

or regional board of adjustment is dissatisfied with

such arrangement, it may upon ninety days’ notice

to the other party elect to come under the jurisdic-

tion of the Adjustment Board.

* * =,

Sec. 6. Carriers and representatives of the em-

ployees shall give at least thirty days’ written no-

tice of an intended change in agreements affecting

‘rates of pay, rules, or working conditions, and the

time and place for the beginning of conference be- -

tween the representatives of the parties interested

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 in-

tended 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 serv-

_ices, 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

5 of this Act, 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 Mediation Board.

_ TITLE I

Section 201. All of the provisions of Title I of

this Act, except the provisions of section 3 thereof,

7a

are extended to and shall cover every common car-

rier by air engaged in interstate or foreign com-

merce, and every carrier by air transporting mail

for or under contract with the United States Gov-

ernment, and every air pilot or other person who

performs any work as an employee or subordinate

official of such carrier or carriers, subject to its or

their continuing authority to supervise and direct

the manner of rendition of his service.

Sec. 202. The duties, ende penalties,

benefits, and privileges prescribed and established

by the provisions of Title I of this Act, except sec-.

tion 3 thereof, shall apply to said carriers by air and

their employees in the same manner and to the same

extent as though such carriers and their employees

were specifically included within the definition of

“carrier” and “employee,” ‘respectively, in section *

thereof. :

*

* * *

Sec. 204. The disputes between an employee or

group of employees and a carrier or carriers by air

growing out of grievances, or out of interpretation

or application of agreements concerning rates of

pay, rules, or working conditions, including cases

pending and unadjusted on the date of approval of

this Act before the National Labor Relations Board,

‘shall be handled in the usual manner up to and in-

cluding the chief operating officer of the carrier

designated to handle such disputes; but, failing to

reach an adjustment in this manner, the disputes.

may be referred by petition of the parties or by

either party to an appropriate adjustment board,

8a

as hereinafter provided, with a full statement of

the facts and * data bearing upon the dis-

putes.

It shall be the duty of a earrier and of its

employees, acting through: their representatives,

selected in accordance with the provisions of this

title, to establish a board of adjustment of jurisdic-

tion not exceeding the jurisdiction which may be

lawfully exercised by system, group, or regional

boards of adjustment, inder the authority of sec-

tion 3, Title I, of this Act.

Such boards of adjustment may be established

by agreement between employees and carriers

either on any individual carrier, or system, or group

or carriérs by air and any class or classes of its or

their employees; or pending the establishment of a

permanent National Board of Adjustment as here-

inafter provided. Nothing in this Act shall prevent

said carriers by air, or any class or classes of their

employees, both acting through their representa-

tives selected in accordance with provisions of this

title, from mutually agreeing to the establishment

of a National Board of Adjustment of temporary

duration and of similarly limited jurisdiction. _

* „ „

APPENDIX B

IN THE ei

‘United States Court of ae

FOR THE FIFTH CIRCUIT.

No. 20931

AAXICO AIRLINES, INC.,

Appellees.

Appeal from the United States District Court for

the Western District of Texas.

(April 15, 1964.)

Before TUTTLE, Chief Judge, and RIVES and

WISDOM, Circuit J udges.

TUTTLE, Chief Judge: This appeal raises the

question whether the trial court had jurisdiction to

construe what it found to be a subsisting agreement

and to grant an injunction requiring the appellant

to carry out the terms of such agreement as con-

strued by the trial court.

The contest between the parties arose in the fol-

lowing manner: . 7

10a

Aaxico had for several years conducted an air

transportation business with the use of C-46 air-

craft on the basis of contracts with the United

States Government. Beginning on June 16, 1956,

Aaxico and ALPA had been parties to a collective

f ming agreement covering the employees fly-

ing its aircraft. The most. recent of the collective

bargaining agreements between the parties became

effective on January 1, 1960. It provided that it was

to continue in full force and effect until June 30,

1961, and thereafter until each succeeding June 30,

unless written notice of intended change is served .

in accordance with Section 6, Title 1 of the Railway

Labor Act by either party thereto at least 60 days

prior to June 30, 1961, or June 30 of any succeeding

year.“ Prior to the expiration date of this last

agreement, and without any specific written notice

“of an intended change in agreements affecting

rates of pay, rules or working conditions,“ on the

occasion of Aaxico's losing its Logair (Govern-

ment) contract as of June 30, 1960, and the leasing

by. it of approximately 25 C-46 aircraft to Capitol

Airways, which company acquired the Logair con-

tract from the Government, Aaxico furloughed all

of its approximately 221 pilot employees by giving

them two weeks’ notice as required under the agree- .

ment. The notice contained the statement, “We can:

not, at this time, see any possibility of a resumption

of our Logair flying but if any change should take

place you will be promptly notified.“

Section 6, Title 1 of the Railway Labor Act is a provision relating to the

change “in agreements affecting rates of pay, rules or working conditions,”

provides for the processing of bargaining through the Mediation Board before

proposed changes in such existing agreements can be put into effect."

lla

Thereafter, ‘although Aaxico had. no other air

transportation business to carry on until it was

able to obtain further or new contracts, it did not

dissolve but maintained a skeleton organization

principally engaged in seeking new contracts in-

cluding an effort to bid on the following year’s Log-

air contract. Se coe eae ä

on October 17, 1960, during the stated Ne of the

contract, Aaxico wrote to ALPA as follows:

„Aaxico Airlines has suspended service in

all forms of air transportation. We operated

our last flights in early July of 1960 and have

not had any pilots in our employ since that date.

„On December 7, 1959, an Agreement and

various Letters of Agreement and a Supple-

mental Agreement were signed between Aaxico

Airline, Inc., and The Air Line Pilots in the

service of Aaxico Airline, Inc., as represented

by 1 Air Line Pilots Association Interna-

tional. '

“This letter is to advise that the subject mat-,

ter of the agreements listed in the Paragraph

above no longer exists and therefore Aaxico

Airlines considers these agreements terminated |

and of no further legal force and effect.”

Appellee replied on November 8, in part, as fol-

lows: * *

„We are not in a position to agree entirely

with your statement. So long as AAXICO re-

mains inoperative, this document lies dormant.

In the event that operations of the Company

12a

are resumed, however, within the period in

which AAXICO pilot employees have job ten-

ure under this Agreement, this’ Association

would require their reemployment by the Com-

pany.” | é

This letter from Aaxico and the reply by ALPA

had clearly created the first dispute between the

parties: If this dispute was referable to a construc-

tion of the terms of the then existing contract, the

procedure required by the Railway Labor Act was

that the aggrieved party should have then filed a

grievance and processed it through the System

Board of Adjustment, If, on the other hand, this

amounted to the thirty days’ written notice contem-

plated by Section 6 of Title 1 of the Railway Labor

Act of “an intended change in agreements affecting

rates of pay, rules or working conditions,” the par-

ties were under obligation to arrange for the con-

ference provided for in Section 6 of Title 1 and

proceed through the Mediation Board until the

negotiations for the new contract, or the change in

the old contract, were exhausted.

Neither of these procedures was followed. In-

stead, after Aaxico obtained new Government con-

tracts, effective July 1, 1961, in the performance of

which it used DC-6A aircraft, a type of aircraft

different from that which had theretofore been used

in the prior operation and as to which pilot qualifi-

cations are different and more stringent, the Airline

proceeded to obtain pilots through two pilot supply

companies which, for the purpose of this appeal, we

can assume amounted to nothing more or less than

13a

a service agent for the employment of pilots by the

Airline itself. However, prior to the actual com-

mencement of operation, on June 28, 1961, appellee,

without having made any further demand or re-

quest for arbitration or mediation under either pro-

vision of the Railway Labor Act, brought suit in

the Florida State Courts against the appellant seek-

ing a construction of the contract, a declaration of

the rights, and enforcement of the contract.

The next step chronologically was that on July 20,

1961, after appellant had begun DC-6A operations,

appellee addressed a letter containing the follow-

ing to the President of Aaxico: —

™ ant to the Agreement between Aaxico

Airlines, Incorporated and the air line pilots in

its service, as represented by the Air Lines

Pilots Association, International, the pilots of

Aaxico Airlines, Inc., hereby file this as a Group

Grievance: and — an investigation and

hearing thereon. ine grievance is upon

the Company’s violation of the Agreement,

specifically including Sections 13 and 24 there-

of, by refusing to recall furloughed pilots.”

Section 13 of the contract provides for seniority.

Section 24 provides for the demotions and reduc-

tion of personnel '

The President of the appellant replied on July

27th as follows:

2 This suit was subsequently dismisséd, but not until after this present action

was brought in the federal court and appellant moved to stay this action pend-

ing a decision of the Florida State Court.

14a

„As Airline Pilots Association International

was advised on October 17, 1960, Aaxico Air-

lines considers that the agreement previously

existing between Aaxico Airlines and the airline

pilots in the service of Aaxico has been termi-

nated. This company, therefore, could not pos-

sibly be in violation of such terminated agree-

ment and your request for a hearing based upon

an alleged group grievance is entirely out of

line and, of course, cannot be considered by this

company.”

To this letter appellee replied on August 4th:

“I am in receipt of- your letter of July 27,

1961, denying my request for a hearing rela-

tive to a group grievance dated July 20, 1961.

Since this decision is unsatisfactory to the

affected pilots, I hereby request an appeal hear-

ing. 5

“It is requested that the Company send a

copy of all hearing notices and decisions ren-

dered in this case to the undersigned and to the

Legal Department, Air Line Pilots Association,

International, 55th Street and Cicero Avenue,

Chicago 38, Illinois.” ö

No action thereafter having been taken by either

party relating to the matter of grievance, ALPA

filled this suit on August 24, 1961.

Thune pleadings.and proof adduced before the trial

court presented the following issues:

5 15a

(1) Did the loss by Aaxico of its sole air

carriage contract, followed by the leasing of

its planes to another airline and the furlough-

ing of all of its pilots, and the complete sus-

pension of its operations pending the obtaining

of a new contract, either constitute a termina-

tion of the collective bargaining agreement then

in effect or did it warrant Aaxico in treating it

as terminated by its unilateral action?

(2) What tribunal is appropriate under the

National Railway Labor Act to decide issue

No. 1? | aah

(3) If the agreement between Aaxico and

ALPA remained in effect through the date of

expiration, June 30, 1961, notwithstanding the

circumstances mentioned in issue No. 1, were

any of the rights of ALPA and its members

under such agreement violated upon the occa-

sion of Aaxico’s reengaging in air carriage un-

der the contracts it obtained to be effective

July 1, 1961? ) ,

(4) If such rights were vidlated, what tri-

bunal should make these determinations? ~

(5) Did the district court have jurisdiction

over this controversy and, if so, to ‘what ex-

tent? ; a a

The trial court held that the first issue was to be

answered in the negative. It decided on the basis of

the facts, which were undisputed so far as actually

bear on this issue, that the loss of the Logair con-

tract with the Government by Axico and its com-

plete suspension of operations pending the negotia-

16a

tion of a future contract, which occurred approxi-

mately one year later, neither amounted to a termi-

nation nor did it justify Aaxico in terminating it

unilaterally.

®

Thus, the trial court also answered the second

issue. It decided that it was the proper tribunal to

pass on this legal question. : |

The trial court also answered issue No. 3 by seit

ing that it had jurisdiction to determine that under

the contract there were certain rights both of ALPA

and of its members that were violated when Aaxico

hired new pilots, and paid them different rates of

pay than provided for under the agreement and

when it hired the new pilots without reference to

the seniority and other provisions of the existing

agreement.

The court, thus, also decided issue No. 4, par-

tially, to the effect that it was the proper tribunai

to determine what rights under the contract had

been violated, but it also decided that there were

certain other contract disputes that should be re-

ferred, following grievance procedures as outlined .

in the agreement, to the System Board of Adjust-

ment. |

Finally, the court answered issue No. 5, both by

the action it took in resolving issues Nos. 1 and 3, 5

but also by concluding that it had the power to re-

quire Aaxico to assure the setting up of a System

Board of Adjustment in order that grievance pro-

17a 7

cedures could be pursued as provided for under the

Railway Labor Act. ä 8

We conclude that the jurisdiction of the court was

considerably more limited than that which it exer-

cised. To the extent that the trial court could find

on the record before it that the appellant had failed

to make available the grievance machinery in order .

to permit a reference to a System Board of Adjust-

ment, and to the extent that the court could find

that ALPA had not either acquiesced in or aban-

doned any rights which it may have had under the

contract, if not terminated, it would be within the

competence of the trial court to have required

Aaxico to assure the availability of grievance proce-

dures and a System Board of Adjustment. In point

of fact, Aaxico did not appeal from that part of the

trial court’s order which required it to “join with

plaintiff Air Line Pilots Association in establishing

a System Board of Adjustment to function under

said contract; and give effect to such System Board,

as set out in the System Board Agreement of said

contract.” ö

This is another one of those cases which, when

brought to court, poses the preliminary question

whether the relief sought is relief which can appro-

priately be granted by the court or which, under

the carefully considered scheme of the Railway

Labor Act,-must be resolved by the System Board

of Adjustment. The answer to this question is found

in determining whether the dispute is what has gen-

erally been recognized in cases arising between car-

18a

riers and their employees as a minor“ dispute or a

“major” dispute. This terminology, used by the Su-

preme Court in Elgin, Joliet & Eastern Rwy. Co. vs.

Burley, 325 U.S. 711, was discussed by us in a re-

cently decided case, St. Louis, San Francisco & Teæ-

as Rwy. Co. v. Railroad Yardmasters of America,

AFL-CIO, 5th Cir. ... F.2d *.., No. 20570, decided

March 4. 1964. Pointing out, as we did, in that opin-

ion that the court has adhered to the distinction

. between minor disputes and major disputes we there

said, “It is plain here that the dispute raised by the

complaint could be resolved only by construing the

existing contract. It follows that the trial court

erred in entertaining jurisdiction of the suit. The

appellee should have been remanded to the griev-

ance ** set forth i in the contract.”

We thus recognized what has always been the

distinction between the two types of disputes. If

“the dispute relates either to the meaning or proper

application of a particular provision [of an existing

agreement] with reference to a specific situation or

to an omitted case,” Elgin, Joliet & Eastern Rwy.

Co. v. Burley, 325 U.S. 711, it is a minor dispute no

matter how seriously it may affect the parties to

the contract.

With these general principles in mind we look

first to the first issue stated above. Clearly, the

complaint by which this litigation was started was

based on the theory that the agreement between

Aaxico and ALPA was a continuing one and was

still in effect. The Complaint a showed that the _

19a

1 had proceeded on the 8 that the contract

had been terminated. How, then, was this question

to be decided? Obviously, it could be decided only

by interpreting the agreement itself and thus it was

a minor dispute, on¢é which under the com-

pletely uniform holdings of the courts must be sub- .

mitted to the grievance procedures with final deci-

sion to be made by the System Board of Adjust-

ment. We conclude, therefore, that it was beyond

the competence of the trial court to resolve this

dispute.

S8, too, with respect to the other interpretations

made by the trial court of the obligations of the

parties under the terms of the agreement. For in-

stance, whether, assuming the contract was still in

effect, Aaxico was required to recall for the opera-

tion of the new equipment requiring greater or dif-

ferent skills, the pilots who had previously been

furloughed, was nécessarily to be determined from

the contract of employment. The failure of Aaxico

to recall the pilots and, in their place, to accept

pilots furnished by another agency, if objected to -

by. ALPA or any of the plaintiffs, was the proper

subject of grievance procedures in the traditional

sense. Thus, it was beyond the competence of the

trial court to resolve thése issues as well, of course,

as the issue of whether the pay requirements under

the contract were to be carried out.

; ; \

We think it clear that if the proof shows that

Aaxico made impossible the carrying out by the ap-

pellees of the grievance procedures to the System

Ra

20a

Board of Adjustment, the trial court had d jurisdic:

tion to order Aaxico to carry out its obligations

under the contract to make arbitration and decision

of these matters effective. Virginia Rwy. Co. v. Sys-

tem Federation No. 40, 300 U.S. 515.

The undisputed facts present in this case probj-

ably warrant a comment that, regardless of how the

trial court finally determines the factual issues, a

normal processing of the disputes immediately after

they arose would have proved the efficacy of the

plan contemplated in the Railway Labor Act, where-

as the failure to resolve these disputes promptly

has resulted in litigation that will inevitably lead to

serious unanticipated loss to one party or the other.

This is true because if the question of the termina- |

tion of the contract had been resolved in the fall of

1960 at a time when no pilots were employed or

sought to be employed by Aaxico, this whole dispute

might well have been resolved before the commence-

ment of the operations by the use of new equipmnt

July 1, 1961. We do not intimate a judgment on the

issue whether the circumstances existing after the

exchange of correspondence at that time amounted

to either an acquiescence by appellees or a waiver of

a right to pursue the dispute further, but we do hold

that the extent of the rights of the appellees there-

after was to present their contention to the district

court that they were unable to pursue their griev-

_ ance procedures because of stated failures on the

part of the appellant to make such processes avail-

able. Thereupon the trial court could promptly have

| resolved this issue either PY directing submission

2la

of the questions to the grievance procedures or *

holding that the appellees no longer had such rights.

The judgment is REVERSED and the case is

REMANDED for further proceedings not inconsist-

ent with this opinion.