Petition for Writ of Certiorari — Oling v. Air Line Pilots Ass'n

. Rane ‘eF , 44 ie |’ Office-Supreme Court, U.S.

{3 chit Ct | ts ce thL ee

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. siisiaiilntiaiieteal — a store, ©

. ee dee — "T JoHTLF. DAVIS, CLERK

‘IN THE ne .

‘Supreme Court uf the Huited States.

Octowen mae, 1965

XN

Fa

Jou J. Ovine, Davip J. LANoRY, om behalf of

‘themselves and all other ‘“see ond officers’’ in the

employ’ of United “Air Lines, Ine. similarly.

v situated, Petitioners :

- Ve

ATR Line Pitots Assoc IATION, and Untrep AIR ae

Lives INc., Respondents

= PETITION FOR A WRIT OF CERTIORARI TO THE ~

|... +‘ UNITED: STATES COURT OF APPEALS FoR

“THE SEVENTH CIRCUIT

L. J. GROMEINE

HERMAN STERNSTEIN

° _ WituiaM RB. PEER

1155 15th Street, N. W.

- Washington, D. C.

q | aes oa ciation for Petitioners .

as, Of Cotinsel: ad

ZIMRING, GRoMFINE AND STERNSPEEN

1155, 15th Street, N. W.

Washington, D. ¢.

Press oF Byron S. ADAMS, WASHINGTON, D. C.

WEE TE 9

| In the Matter of Petition for Revision of and Protest

Against Integrated Seniority List of Delta-CéS

Atr Lanes, Inc.; ‘CAB Order No. E-14403, August

es, eI Er ee aie»

NLRB v. Deena ‘Artware, Inc., 198 F. 3d 645 ‘(CA 6),

«Cort. dew: HB US. OG 2. cc ccsccccccscnciccedc

8. 8. W. Inc. v. Air Transport ‘Association of America,

191 F. 2d 658 (C.A. D.C.), cert. den. 343 U.S. 955. .

‘Steele v. Louisville & Nashville R.R., 323 U. S. 192.

?

INDEX .

Page

-Orrsion Brtow | Gosews sss degccnsoe avec e ee eeeenes vee 2

IN ivhiin dc ieivescas ks tte edseeeeeceeeeee 2.

Question PrusenTep ......... adaningseshi cuts re

Srarutory Provisions INVOLVED ............- suave 2

SSrareember’ 2. so ots du ove con's cheeecs sus dita ‘acai a

REAsons rok GRANTING THE WRIT EP EARS Ne Oe ..

INNS ob. oss dsecs setcenveniens amenaecxessen am

APPENDICES nee ‘usted Vena vceacans vicees, Mf

A. Opinion of the Court ihitote pelea gnevebanteoden ‘ la.

B. Statutory Provisions Involved .............++. 15a.

2 AUTHORITIES .

3 Conley v. Gibson, 355 U.S. Oe shcidssvineeasas Seen ©

_ Federal Trade Commission v. Cement Institute, 333 __

' ) Sn cnceneue kitties gpece. deeendae Save eae ae

? Plight Engineers’ International ‘Association v. Eastern

“.- Atr Lines, Inc., CAB Order No. E-19923, August.

-.\ I Mn 26 cehenneeeehes aadmiene dane ckeei ken es 14

General American Tank Car v. El Dorado Terminal .

< es I ib ok Votes ub adi abcess cds eedace 17.

H ewitt Robins Inc. v. Eastern Freight Wags, Inc., 37 1

: pee ee se Suntory! ms

: Page

Texas ¢ N.O.R. Co. v. Brotherhood of Railway Oteris, 43

ae RRR a a a ee i

United Brick Workers v. Deena Artware, Inc., 198 F.

me 2d 637, (CA 6) «.....2. MS Wii maa akiadeess 22

' United States et al. v. Lowden et al., 308 U. s. 295 re 20

‘United. States. v. Philadelphia National Banh, 374 US.

/: Sn eee ene eet en eek ace dhe teens a Peeve 12, 16,17

/ Virgiman Ry. v. System Federation No. 40, 300 U. 8.

/ 515

Whitney National Bank v. ‘Bank of New Griéans é-

Trust Co. et ab., 379 US. 410 .......tecereees ies 10/7

, - STATUTES -~— iy,

’ Railway Labor Act (Act.of May 20, 1926, 44 Stat. 5T7,

as amended 45 U.S.C. § 151 et seq.): ee ;

Section 2, First, 45 U.S.C.. 152, First ... rrr 12, 15a

Section 2, Third, 45 U, S.C. 152, Third ..:... ee 15a

5 -- Section 2, Fourth, 45 U.8.C. 152, Fourth ....12,15a

: Federal Aviation Act, 49 U.S.C, 1301 et seq.: Rig

oe » Section 401 (k) (4), 49 U.S.C. 1371(k) (4)... aaa 13

Section 408(b), 49:U.S.C: 1378(b) ...... aceasta

: Section 1006, 29 U.S.C. 1486 ....:....10, 11, 15, 17a

aS Section 1106, 49 U.S.C. 1506 ..... yh wiv beeeee18, 17a

RS Labor Management Relations Act: ite |

_ Section 8(b) (4), 29 U.S.C. 158(b) (4) . ea: ee,

\\ Section 303, 29 U.S.C. 187 ....6:...c0ceeseeeee QL

Co

IN THE -

Ajo Court of the Huited. States

Oocrdnmp Team, 1965

oo

.

“

——————o

” e “all

o> i é .

J OHN J. OLING, Hae J. ‘tae on behalf of.

‘themselves and all other “ second officers’? in the

ae employ of United Air Lines, . Inc. similarly

situated, Petitioners

situated, Petitioners 7

v. | Siete

AIR Linz Puors Assocrarton, and UNtrep Ar

| Lives Ino. , Respondents fines

@

PETITION FOR A WRIT OF CERTIORARI TO THE

_UNITED STATES COURT OF APPEALS FOR

~~ THE SEVENTH —_— aes

Lid

i=

To the Senareite the Chief. Justice of ‘the United ae

States and the Associate Justices of the Supreme

Court of the United States:

. Petitioners pray that a writ of certiorari issue ‘és

‘review the judgment of the United States Court of

Appeals for the Seventh Circuit, entered in the above-

entitled case on J une 4, 1965.

oe eee es

: OPINION BELOW.

The opinion of the court: below, printed‘ in Aponte

A hereto (infra, p. 1a), is reported in 346. F. 2d 270.

‘ ‘ ; \ {, 4 ‘

‘* “JURISDICTION: pee takers

The judgment of the court below was entered on

June 4, 1965. The sare of this Court i is invoked

under 28 U. 8. C. 1254 (1). |

- QUESTION PRESENTED -

— The court below ruled that a suit brought by Peti-

tioners in a federal court seeking to remedy violations

of the Railway Labor Act was a “‘collateral attack”’

_ upon an order issued by the Civil Aeronautics Board

(hereinafter CAB) in connection with a merger pro-

‘ceeding, and could not.be entertained by the court

even if the subject matter of the suit is not within the

_- exclusive jurisdiction of the CAB: The question pre-

sented is: :

- Where the subject matter of a suit ina federal ‘court

alleging violations of the. Railway Labor Act involves,

in some respects, matters which are also cognizable

by the CAB in a merger. proceeding, are the federal

courts prevented from exercising their normal Railway

Labor Act jurisdiction by virtue of the fact that plain-

tiffs in the court suit had first invoked the jurisdiction:

-0f the CAB with respect to the limited — within -

its s jurisdiction ? ‘

STATUTORY PROVISIONS INVOLVED

: The statutory provisions involved in this case are set

-- forth in Appendix B (infra, pp. 15a-17a). a

1°

[Saw

3

‘STATEMENT

Petitioners comprise ‘a group of about 233 employees

7 of Respondent United.,Air’ Lines Inc. (hereinafter:

“United’’) who are classified as “second o cers’’, a

_ ¢lassification covering those flight deck crew members

whe perform. the work commonly known‘4s flight engi-.

neering. They brought this suit on September. 4, 1964

/ in. the U. S.. District Court’ for the Northern Division

~~

3

of Tllinois asa class action alleging that United’.and '' |

‘Respondent Air Line ~Pilots Association (hereinafter

_“ALPA’’) had violated the Railway Labor Act (45.

U.S.C.A. 151, et seq.),; and a injunetive aro

and damages. =

The circumstances oak of which this litigatiow arose

have their origin in a long struggle between ALPA

and Flight Engineers’ International Association (here-

inafter “FEIA”’’) for the right to represent ight

engineers in the ¢mploy of United. Petitioners com-

prise only a n of the second officers employe by

‘United. Prior to 1961, Petitioners, together with all

‘other second officers of United, had been represented

by. FEIA i in a bargaining unit confined to flight engi-

neers. Petitioners had been members and officers of

FEIA. -ALPA had been the collective bargaining rep-

resentative of the pilots (or ‘‘captains’’) and co-pilots

(or “first officers’’). -For many years ALPA had

sought to gain the right also to represent the flight

- engineers. . This effort was openly and ga aaa ba

posed by Petitioners. (P.A. 8, 121-123)*.

1p A? silat to the Aanendis filed by Petitioners ‘e Plaintiffs- |

Appellants’’) in, the court below. In the factual statements made -

herein cognizance is taken of the fact that the court below sustained

@ motion to dismiss the complaint, for lack of jurisdiction and for

_ failure to state a claim -and of the well established rule that in

such eircumstances material factual allegations of the complaint oe

maust, for the purposes + ch areeasrss be taken as admitted.

Conley ¥. er ee 41, 7 .

\

4

In January of 1961, the National Mediation Board

~ permitted a representation election to be held in which .

—over the opposition of Petitioners and FEIA—flight -

engineers were requpired to vote in a single unit

together with the more numerous pilots and co¢pilots,

. with the result that ALPA was selected and certified - _

as the exclusive bargaining representative. for all of.

- :United’s pilots, co-pilots, and flight engineers in a: _

,single bargaining unit of. ‘flight deck crew members”’ —

‘ (P.A. 122-123).. There is no provision in the agree-

ments thereafter executed between ALPA and United

- requiring membership in ALPA as a condition of em-

ployment, and Petitioners have. refused to become.

members of ALPA. (P.A. 5, 150)

| At the heart of the complaint i in this case is the oro.

that from the time when ALPA took over the right to

Par for Petitioners it embarked upon a program, —

- in which United- aquiesced, to discriminate against

Petitioners because of their-known allegience to FELA,

’ their known opposition to the program and policies of

_’ ALPA, anid their refusal to become members of ALPA. .

(P.A. 8) The principal area in which such nan

‘i ‘ruled that these two groups now comprise a single

‘nation manifested itself involved the very basic prob- .

lem of merging the seniority of the two formerly sepa- |

‘rate groups of pilots and flight engineers. From the

beginning Petitioners’ had urged upon ALPA and

-- United that" since the National Mediation Board had

Vt

wy

bargaining unit of flight deck crew members, all flight “

deck employees should be credited with all of the time ©

they have flown as a flight deck crew member, with the

‘concomitant right to exercise their seniority so com-

puted to bid for any one of the three flight’ deck crew

jobs for which they are qualified. (P.A. 4-5, 126-127;

: 152-100); However, from the beginning ALPA made

F he : , : 4

Bo

5

it clear that it had no intention of following that, prin-

ciple; but intended instead to discriminate against

Petitioners by placing them arbitrarily at the bottom -

‘of any seniority list. from which the jobs of captains -

_and first.officers would be bid (P.A. 128-129, 162-163) ;

and this, as the complaint alleges, in order to punish

Petitioners for their oppositién to ALPA. (P.A. 8) |

Meanwhile, and before the onahbied could be resolved, :

on April 3, 1961, the CAB entered an order approving

_ the merger of United ‘and @apital Airlines Inc. (here- -

inafter Capital) under Section 408 of the Federal Avi- -

ation Act. (49 U.S:C.A. 1378). On Capital ALPA

had been the bargaining representative of both the

| pilots and the flight engineers. The CAB attached cer-

~. the requirement that: . provisions shall be made — ,

. for’ the integration of seniority lists in a fair and _

tain ‘conditions to approval of the merger, including

equitable manner, including, where applicable, agree-

,. ment through collective bargaining between the car-

riers and the representatives of the employees affected

ee A A. 123, 35-36).

| ~-details—of-the procedures by~ which - :

ALPA and United resolved the matter of integrating.

seniority are not germane to the instant petition. Suf-

fice it to. state that Petitioner’s worst fears. of being

discriminated against because of their opposition to,

and refusal to join ALPA, were realized. ‘Petitioners

‘were denied any real voice in the determination of the

policy to be applied; indeed ALPA designated as the

principal spokesmen for the United: second officers,

certain employees who had supported ALPA in its

efforts to supplant FEIA and had already voiced their

opposition to the — im of Petitioners that all flight

-_ crew members s ould be credited with all of their |

i ¢

,

. 6

flight deck een (P.A. 124-126, 130) And whet! ALPA

finished the. process by which they submitted the issues

to a strictly intra-union ‘‘arbitration” before two

‘ boards, in neither of which proceedings United or

Petitioners were parties, Petitioners wound up at-the ©

bottom of the seniority list from which the jobs of

captains and first officers are bid. They were placed

substantially behind hundreds of others who had much

less flight deck crew service, who had no greater quali-

fications -for those jobs, and who’ were distinguished .

from Petitioners only in having been—as Petitioners

refused to be—loyal supporters of Ala A. (P.A. 5-6,. -

128-140, 145-146)

Thereafter, as the complaint alleges, United ac-

cepted, without challenge and without any real bar-

- gaining, the resolution of seniority that ALPA had

dictated, thereby delegating to ALPA complete con-

trol over the future job rights and security of Peti- ©

_tioners. (P.A. 6-8). What is more, as the complaint

further alleges, in return for having been delegated

unfettered control over seniority, ALPA acting as the

; ne ar Page ; biti ~

cepted economic terms and conditions far inferior than

ALPA would otherwise have agreed to. (P.A. 7)

Believing as they did that the discriminatory con-

duct by ALPA and United constituted a violation of

the Railway Labor Act, Petitioners prepared. to bring

suit in a federal court. Before doing so, however,

Petitioners deemed it necessary to avoid any possible ~

claim that they had failed to exhaust any administra-

tive remedies available to them. They recognized

that under the terms of the order in which the CAB

had- approved the merger of ‘United and Capital

the CAB had reserved: jurisdiction to amend, modify

T°

. or add to the labor protective provisions of said

order ‘‘as circumstances may require.’’ Accord-

ingly, on November 27, 1963 Petitioners filed a peti-

tion with the CAB asking the Board to re-open the

record in the merger proceedings for the purpose of .

taking evidence in support of the claim that seniority

had not been integrated in the fair and equitable man-

ner required by the terms of the order approving the

merger. The petition asked the CAB, after hearing,

to set aside the seniority list, and to deterinine Peti-

' tioners’ length of service in a manner which credited _

Petitioners with their full flight deck crew service.

That was the central thrust of said petition; it did not

seek anything like complete relief against the discrimi-

nation visited upon Petitioners (such as the failure

of ALPA to bargain on economic terms without dis-_ .

crimination, or the relinquishment by United of its:

responsibilities i in bargaining concerning seniority) ; it

did not-ask for any specific relief or future protection

_.against the discrimination practiced by ALPA, and it

did not seek damages—all such matters being beyond.

the jurisdiction of the CAB in the merger proceeding.

(P.A. 99-106, 148-149).

_ No hearing was held by the CAB on that ein: i

On April 24, 1964, the Board dismissed the petition.

(P.A. 149- 150, 106-115) The basis for the refusal of :

the Board to reopen the record as requested in the ey

-. petition is best expressed in the final paragraph of the

Board’s decision :

“In sum, upon a consideration of the pleadings )

submitted by petitioners we find no basis for con-

eluding that the seniority. lists in question were

not integrated in a fair and equitable manner in

_ conformity with thé requirements of Section:3 of

the Labor Protective Provisions of the United-

8

Capital merger order. Where, as here, the car-

rier and the duly certified representative of the

petitioners reached agreement by collective bar- .

gaining procedures on a seniority list, and where,

as here, the agreement itself conforms to. the list

resulting from the decision of impartial arbitra-

tors, we find no basis for reopening the record of .-

* this case.” (P.A. 114-115)

_* And this refusal of the CAB to set aside the seniority

list where the list had been agreed to by the carrier

and the authorized collective bargaining representa-

tive, was perfectly consistent with the general approach

the CAB has taken to such problems—i.e. to leave it to

the parties if possible—as i is expressed in the following

generalization in the CAB decision in this matter:

‘Although the Board has legal ‘power to direct the .

_ precise manner in which the individual seniority ©

lists should be merged, we -have.consistently taken

.., the position that it is more desirable that this task

- be accomplished by those directly concerned, the

employee groups and the carrier, either by agree-.

ment or arbitration.’?’ «P.A. 111-112)

“Having exhausted the limited administrative remedy

available, and now addressing themselves to the larger

problem of obtaining future protection against the gen-

eral discriminatory conduct by ALPA and United—

going far beyond the matter of seniority as such—Peti-

tioners filed the instant complaint in a federal district

court. The complaint (P.A. 3-10) alleges violations

of the Railway Labor ‘Act by both ALPA and United

generally falling into. the following categories: (1) °

The claim that ALPA violated the Railway Labor Act

by failing in its duty of fair representation by dis-.

criminating against Petitioners because of their oppo- .

sition to ALPA and refusal to join that organization;

9

and the concomitant claim that United violated the Act

by entering into agreements with ALPA knowing that

those agreements. were the products of invidious dis-

'. crimination against Petitioners; (2) The claim that

_ the discrimination against Petitioners unlawfully en-

couraged membership in ALPA and interfered with

their rights under the Railway Labor Act; and (3)

The claim that United violated the Railway Labor Act

by delegating to ALPA complete control over seniority,

particularly where such delegation was in return for

ALPA’s agreement to take less in wages and working

conditions for Petitioners than they would otherwise

have been entitled to (P.A. 6-8). The complaint

. sought damages and injunctive relief which was by no

means limited to setting aside the seniority list; but

which would secure protection for the future against

_ the continuance by ALPA; in the conduct of its func-

tions as bargaining representative, of any unlawful

discrimination against Petitioners.”

_ Respondent United thereafter filed a Motion To Dis-

miss (P.A. 15-16) on the ground that the distriet-court ~

2 Thus, the prayer for relief asked the court, inter alia: :

“*1. To issue an order enjoining ALPA from discriminatintg

against plaintiffs in the performance of its representation

functions, and directing ALPA to represent plaintiffs as their

collective bargaining agent fairly and without discrimination -

based upon irrelevant or invidious considerations;

cd * ®

_ . 8, To issue an order enjoining ALPA and United from en-

couraging membership in, or activities on behalf of, ALPA

or any other labor organization, by discriminating against them

in any manner whatever in regard to tenure of employment .

or any term or condition of employment, including seniority

status and bidding rights; 5-oy

4. To issue an order enjoining ALPA and United from inter-

fering with, restraining, or coercing plaintiffs in the exercise

of their rights under the Railway Labor Act...’

* 40

_ was without jurisdiction and the complaint failed to

state a claim upon which relief could be granted. On

November 16, 1964 the district court granted the mo- —

- .tion without any opinion, (P.A. 210) .

On appeal, the court below affirmed the order of the

district court dismissing the complaint. In essence,

the court below concluded that the action instituted by

Petitioners could not be entertained by the district

court becausé it was a ‘‘collateral attack’? upon the

’ April 24, 1964 order of the CAB.

It is most important to note that the court below

reached this ‘conclusion even on the assumption thats.

the matters covered by the instant complaint were not ,

‘ within the exclusive-jurisdiction of the CAB.. The.

court states, that, having concluded that the instant -

complaint was a ‘“‘collateral attack” upon the April 24, Ls

; 1964 order of. the CAB:

‘s. . we do not reach the issue as to whether the

CAB had. exclusive jurisdiction; as argued by de-

fendants, or concurrent jurisdiction, as argued by

plaintiffs. ‘In any evént, its.jurisdiction was in-

- voked and pursued by plaintiffs to the point of an

‘adverse decision, and they failed to seek relief

therefrom by a review in the manner provided

_ by Congress. ”» (nfra, p. 14a) . :

The court below emphasizes the fact that Petitioners

had not appealed the April 24, 1964 order of the CAB

to a Court of Appeals in accordance with Section 1006

of the Federal Aviation Act (29 USCA 1486), infra,

p. 17a. However, it goes without saying, and was

-surely recognized by the court below, that if the instant .

‘ - complaint was really a ‘‘collateral attack’’ upon the

CAB order it would not have been any less so if brought

after a direct appeal from the CAB order to a Court

nn

of Appeals. ‘The decision of the peer below surely

cannot be read as suggesting that an administerative

order may be collaterally attacked by a suit in a dis-

trict court provided that the plaintiff first seeks direct

judicial review of. the administrative order before in-

| stituting the suit.

The decision below sini therefore, be read as in-

terpreting Section 1006 of the Federal Aviation Act

- as requiring'the conclusion that even where the matter -

1s one over which the CAB and the federal courts have

concurrent jurisdiction a party who elects to first pro-

‘ ceed before the CAB is not merely exhausting his ad-

_tinistrative remedies; he has made an election which

exhausts all of his remedies. Having ‘‘invoked’’ the

jurisdiction of the CAB, he may not -thereafter file

suit in a federal court under any statute which would.

otherwise have given the court independent jurisdic-

tion over the matter. His only recourse is to appéal

_ from the CAB order if he has failed to obtain relief:

from the CAB. 1 4

ae

In th | i se. a. ae

- means that where plaintiffs i in a suit in a federal court

alleging violation of the Railway Labor Act have first

elected to seek relief from the CAB as to those limited

. aspects of their claims over which the CAB has juris-

diction, and are denied that relief. by the CAB, they

may not thereafter file suit in the federal court.

REASONS FOR GRANTING THE WRIT

1. The decision below establishes a new rule, requir-

ing: an. election between administrative and judicial

remedies, even where administrative and judicial juris-

diction is concurrent, which rule is directly contrary

12

to the principles. frequently siiaiaail by | this Court, |

and most recently reaffirmed in United States v. Phila-

delphia National Bank, 374 U.S. 321.

The complaint i in the instant case placed before the.

district court questions concerning the enforcement of

Sections 2, First, Third & Fourth of the Railway Labor

Act (infra, p. 15a) which, under decisions of this

Court, have long been established as being properly

within the jurisdiction of the federal courts.* The

decision below does not hold that in this instance the

federal courts were ousted of jurisdiction because the —

‘subject matter of the complaint was within the exclu-

sive jurisdiction of the CAB. Among other things,

such a conclusion would have been contrary to several

clear pronouncements by the CAB itself to the effect

that to the extent it has any jurisdiction with respect

_to Railway Labor Act matters its jurisdiction is con-

current with, and not exclusive of, that of the federal ©

_ courts. To the court below it makes no difference

8 On the matter of federal_court enforsement-cf tha duty under — —

the Railway Labor Act.to represent all employees without invidious

discrimination see, e.g. Steele v. Louisville & Nashville R.R., 323

U.S. 192. ‘On the matter of the jurisdiction of federal courts toen- - -

force the general prohibitions in the act against interference and .

coercion see, e.g. Virginian Ry. v. System Federation No. 40, 300

. US. 515; Texas & N.O.R. Co. v. Brotherhood of Railway Clerks,

- 281 US. ‘548. ;

4In 1959 the CAB cima a merger of Delta Air Lines and

Chicago and Southern Air Lines, attaching as a condition that

seniority be merged in a ‘‘fair and equitable’? manner. After

ALPA and the surviving carrier had negotiated a resolution of

the seniority merger, a group of pilots filed a ‘‘ Petition for Revision

and Protest’’ with the CAB challenging the seniority integration.

‘The CAB rejected the petition on its merits; but made the follow-

ing observation concerning the relationship of its decision to any .

whether or not the jurisdiction of the CAB is exelu-

sive ; it is shfficient that the CAB has jurisdiction; and

the Petitioners, having invoked that jurisdiction, they

contemplated action in the federal courts under the Railway Labor

Act: . a eS

‘‘A final comment is in order. The gravamen of petitioners’

complaint, as we understand it, is that ALPA, in resorting to

, alleged arbitrary methods in accomplishing a proposed inte-

gration of the seniority lists, and Delta, in failing to assume its

share of the responsibility for integration of the seniority lists, .

engaged ih unlawful discrimination. : We take no position on®

: whether petitioners have a cause of action cognizable by the

. courts. We note that Delta in its motion to dismiss takes the

position that petitioners’ ‘right of action—if any did ever exist

—was in court, and not before the CAB.- This has been made .. °

clear by the Federal courts, acting in dissimilar but related

matters.’ [Footnote citing Steele v. Louisville and. Nashville °

Ry. Co., 323 U.S. 192 (1944)] We further note that peti-

tioners in their answer do not disagree that they may have a

right of action in the courts but that they state, ‘However,

here we believe that it is patently clear that the Board has

primary jurisdiction, and that. petitioners -are obligated to

pursue their administrative remedies, before resort’ to court.

action.’ To the extent that petitioners may have been obligated

to pursue their administrative remedies before this Board

before resorting to c ] in-maind, 4+

RRC pe ma —

.

, 3

would appear that any such obligation was fulfilled by the

filing of the present petition.’’ (In the matter of Petition

for Revision of and Protest Against Integrated Seniority List |

of Delta-C&S Air Lines, Inc., CAB Order No. E-14403, August

f:

31, 1959, p. 6-7, Emphasis added.)

There is a provision of the Federal Aviation Act under which the

jurisdiction of the Board with respect to Railway Labor Act mat-

ters is broader than it is in Section 408 merger proceedings. Section

401(k)(4) of the Act (49 U.S.C. 1871(k)(4)) states: ‘It shall

be a condition upon the holding of a certificate by any air carrier

that such carrier shall comply with [The Railway’ Labor Act].’? ’

_ This provision was not invoked in the instant case because, among

other reasons, there is no basis for obtaining relief against a union

under this provision and such relief is essential to remedy thé

discrimination suffered by Petitioners in this case. However, it

\ +

414

are preitde’ | from iin a the juradition of the

federal district courts.

Plainly, the jurisdiction of the CAB in the United-

, Capital merger proceedings brought under Section 408

of the Federal Aviation Act was confined—so far as_

is here relevant—to determining whether the seniority

of the United and Capital employees had been merged

in a fair and equitable manner. That is all the peti-

tion which the Board dismissed by its order of April

24, 1964 sought to have thé®CAB consider. No one

could possibly contend that in any aspect of its ap-

proval of the merger the €AB had undertaken to

supervise the enforcement of the Railway Labor Act

in all of its broad aspects. A process of negotiations

fully in conformity with the Railway Labor Act could

have resulted in a seniority merger that was not viewed ©

by the CAB as ‘‘fair and equitable’, and the converse

could equally well be true. And, as we have seen, for .

the CAB the test of whether the seniority merger was |

‘‘fair and — is ae mand it has been

CAB as cedegiaedl that its ‘jurisdiction i is no more ree sant

with that of the Railway Labor Act jurisdiction of. the federal

courts. Referring to the relationship between a CAB proceeding —

under this provision and pending federal court litigation under: the .

Railway Labor Act, the CAB has said in a recent case: :

‘‘Under 401(k)(4) the Board has an interest separate and

distinct from the parties to insure compliance with the Rail-

way Labor Act as necessary for the interest of the public .

-The Supreme Court, has held that where the courts and a

Federal Administrative Agency have concurrent jurisdiction —

to enforce a Federal statute there is go reason why proceedings

in the two forums should not: progéed naltancouly Federal

‘Trade Commission v. Cement Invtitute, 333 U.S. 683 (1948),

reh. denied, 334 U.S. 839 (1948)’’ (Flight Engineers’ Inter-

national Association v. Eastern Air Lines, Inc., CAB Order __

No. E-19923, August -19, 1963, Emphasis added)

tack’, stands for the basic p

15

deemed acceptable to the carrier and the employee

‘representative, and aes whether the — Labor —

'. Act has-been violated. > ° >

Petitioners recognize that under Section 1006 of the

Federal Aviation Act (infra, p. 17a) they could have —

appealed from the April 24, 1964 Order of the ‘CAB

refusing to reopen the. record: ‘in the merger proceed-

~ ing. But it must surely be plain that there was noth-

ing to appeal from. Petitioners do not quarrel at all

with the right of the CAB to determine that it will not —

‘go behind the agreement made by the authorized repre-

sentatives of the employees in determining whether the

seniority integration was “‘fair. and equitable” ; ; and

that would have been the only possible i issue in an ap- ~~

peal, and they have never suggested, in any aspect of

- the instant suit, that their purpose in this suit is to

' attack that determination by the CAB. _

But, as already noted above, the diciibi below, by |

relying as it does on the pringiple of ‘collateral at-

7 diction.

_had no. other remedy but . to appeal from the CAB

Order of April 24, 1964. ‘Having elected to proceed ©

before the CAB, says the court below, Petitioners may

not now attempt to remedy the Railway Labor Act vio- .

. lations (even those never. brought to the attention of

the CAB; even those the CAB had no jurisdiction to.

remedy ). by suit in the federal district court.

It is this basic proposition, which is at the Seis

tion of thé decision ‘below, that squarely conflicts-with

decisions of this Court, as well as Courts of. Appeals,

‘on the: principles to be applied where administrative

agencies and the federal court have concurrent juris- -

»

{

iS aoe

Whiere this Court has found—as it ( drecuatty has—

that certain matters are within the concurrent juris-—

_ dietion of administrative’ agencies and ‘the federal

eourts, it has sanctioned the institygion and prosecu-

— Fon of ‘both proceedings ‘simultaneously. Such was. -

_ the situation in Federal Trade. Commission v. Cement —

Institute, 333 U.S. 683, involving a proceeding before

the Federal Trade Commission and a suit in the fed-

eral court under thé Sherman Act. The decision of

this Court in that case cannot be squared with any rule

limiting the parties to the selection of one or the other

tribunal and an appeal therefrom. It will be noted

that the CAB has itself specifically accented: the rule

of Cement Institute as the appropriate approach on

the question of tlg relationship between its jurisdic-

tion and that of the federal courts with respect to Rail-

way Labor Act matters. (Supra, fn 4, p. 14)

Where the jurisdiction of administrative agencies ft

and the federal courts is concurrent, there-are cir-

~ cumstances in. Which the doctrine of ‘‘primary juris-

diction’’ requires resort to the administrative agency”

before instituting court action. If it be assumed

that on the matters covered by the instant com-

plaint “the CAB had ‘“‘primary jurisdiction’’, the de-

cision of the court below conflicts directly with the

application of that doctrine by this Court in United

States v. Philadelphia National Bank, supra. In that

case, two large banks had proposed to merge. Pur-

suant to the Bank Merger Act of 1960, the banks ob-

tained permission to. consolidate from the Comptro'ler

of the Currency. In granting his approval of’ the

merger ‘the Comptroller disregarded adverse recom-"

mendations of the Department: of J ustice as to the

— effect of the merger pon’ competition. .The day fol-

lowing the Comptroller’s decision, the Department of

gS ; !

+f

17 oN

| | aed |

- Justice sued in a federal court to enjoin the merger,

alleging violation of- both the Clayton Act and the

Sherman Act. The District Court declined to issue the

injunction. On appeal, this Court reversed and di-

rected that judgment be entered enjoining the merger.

_ . On the issue of “primary jurisdiction” this Court said

in terms that are directly applicable to the instant

case: | oa

‘“We. note, finally, that the doctrine of ‘primary

_ Jurisdiction’ is not applicable here. That doctrine

requires judicial abstention in eases where pro-

. tection of the integrity of a regulatory scheme dic-

tates preliminary -resort to the agency which ad-

ministers the scheme. See Far East Conference

v. Umted States, 342 'U.S. 570; Great Northern

R. Co. v. Merchants Elevator Co., 259 U.S. 285:

Schwartz, Legal Restriction of Competition in the

Regulated Industries: An Abdication of Judicial

Responsibility, 67 Harv. L. Rev. 436, 464 (1954).

Court jurisdiction is not thereby ousted, but only

postponed. See General Am. Tank Car Corp. v.

El Dorado Terminal Co., 308 U.S. 422, 433; Fed--

eral Maritime Bd. v. Isbrandtsen Co., 356 U.S. 481,

‘498-499; 3 Davis, Administrative Law (1958), 1-

dd. Thus, even if we were to assume the applica-

bility of the doctrine to merger-application pro-

ceedings before the banking agencies, the present

_ action would not, be barred, for the agency pro-

ceeding was completed before the antitrust action

was commenced. Cf. United States v. Western

Pac. kh. Co., 352 U.S..59, 69; Retail Clerks Int’l

Assn. v. Schermerhorn, 373 U.S, 746, 756.’ (374

ry

U.S. at 353, footnotes omitted) . |

This Court similarly noted in General American’

Tank Car v. El Dorado Terminal Co., 308 U.S. 422,

which it reaffirmed in Philadelphia Bank, that: *

. *“When it appeared in the course of the litigation

’ that an administrative problem, committed to the

18

Commission, was involved, the court should have

stayed its hand *pending the Commission’s de-

termination of the lawfulness and reasonableness -

of the practices under the-terms of the Act. There

should not be a dismissal, but... the cause should

be held pending the conclusion of an appropriate

administrative proceeding.’’ (308 U.S. at 433)

Courts of Appeals have likewise applied this rule.

See, for example: S.S.W. Inc. v. Air Transport As- —

sociation. of America, 191 F. 2d 658 (C.A. D.C.), cert. .

denied, 343 U.S. 955, which Petitioners submit con-

flicts with the decision below in a case ety in-

is volving the Federal Aviation Act.

In the instant case the administrative agency was

‘given an opportunity to exercise whatever limited

jurisdiction it had on the issues involved before suit

was brought in the federal court. It refused to~ take

any evidence on the issue of the seniority merger, pre-

ferring to follow the rule that the seniority merger was

‘*fair and equitable”’ if it satisfied the’ parties who had

achieved it through collective bargaining. To say that

‘the consequence of having gone to the CAB is that

‘Petitioners were left with no means @f vindicating the .

very- broad denial of rights under the Railway Labor

Act covered by their complaint other than to appeal

from the CAB order dismissing their petition is to

read into the “primary jurisdiction” principle some-

thing the decisions of this Court will not permit.

_. The decision below, it should also be noted, ignores -

- completely Section 1106 of the Federal Aviation Act

(infra, p. 17a). a ‘savings clause’”’ in which Congress

has made it clear that the remedies available under the

Act are ‘‘in addition’’ to all other ‘‘remedies now ex-

isting at common law or by statute.’’ To that extent,

19

the decision below is also in conflict with the decision

of this Court in Hewitt-Robins Inc. v. Eastern Freight-

Ways, Inc:, 371.U.S. 84, where the Court, in giving

effect to a similar clause in the legislation governing

the Interstate Commerce Commission, said:

_ Those who contend that no judicial remedy is

available: place much weight on the fact that, as

we have said, the Interstate Commerce Commis-

sion has primary jurisdiction in routing practices. .

. To say, however, that such primary jurisdic-

tion compels the conclusion that the courts are

without power to award damages in every instance

where the Commission may not award reparations

by no means follows.’’ 371 U.S. at 88. .

‘The decision below not a is in conflict with the

foregoing decisions of this Court, it misapplies and. —

extends the decision of this Court (on which principal

reliance is placed by the court below) in Whitney

National Bank v. Bank of New Orleans & Trust Co.

et al, 379 U.S. 411. That case involved a suit to en-

join the Comptroller of the Currency from issuing a .

certificate of authority for a new bank. However, the |

bank in question had been established as part of a hold-

ing company plan, and, as such, required approval of

the Federal Reserve Board. That Board had granted

approval, and an application for judicial review

that determination by the Board was pénding whe

the lawsuit against the Comptroller was filed. Thi:

Court concluded that ‘‘the thrust of respondents’ com

plaint goes to’the organization of Whitney-Jefferson

by the holding company rather than to the authority of

Whitney-Jefferson to do business.”? The Court, upon

a review of the applicable statute, concluded that on

the matter of the organization of the bank by a hold-

ing company ‘the Federal Reserve Board had “‘original

20

exclusive jurisdiction.’’ That aspect; baving been ap- —

proved by the Board, the permission to open the bank

for business ‘must be. ‘facted upon routinely’’: by the

Comptroller, and an attack upon the Board’s approval

of the holding company operation could only he made

by an appeal from the decision of the Board.

‘To apply this decision, as.the court below did, is to

completely misread what this Court intended the de-

cision to stand for, and to endow the CAB with juris-

diction over Railway Labor Act violations for which

there is no statutory support, which the CAB has itself |

disavowed, and which conflicts with the principles this

Court has established.

2. The issue presented in this petition is of far

reaching importance in the administration of the Fed-

eral Aviation Act and the Railway Labor Act, and,

additionally, poses a basic question in the relationship —

between administrative and judicial jurisdiction which

merits the attention of this Court 1 in the exercise of its

supervisory ‘powers.

As this Court is ‘aware, ever since the decision in

United States et al v. Lowden et al., 308 U.S. 225, it

‘ has been the regular practice of the Interstate Com-

-merce Commission (in the ase of railroad and motor

earrier employees) and the CAB (in the case of air- .

line employees ) to condition the authority granted by .

these agencies to carriers to engage in mergers, con-

solidations, and similar reorganizations upon the pro-

vision of ‘conditions for’ the protection of employees.

affected. Technological and other organizational

changes, occuring now and certain to accelerate in the

future, in these basic transportation industries will

most certainly increase the occasions in which these

problems will come before these agencies. Hundreds

21

of thousands of employees are directly involved, and

they will be directly affected by the rule announced by .

‘the court below. That rule would compel them, when

faced with the problem of vindicating their rights

under the Railway Labor Act which may be involved

in the mergers, to forego invoking the limited but im-

portant jurisdiction of the ICC or the CAB because to

do so is to preclude the possibility of instituting a suit

. inthe federal courts to protect those rights if the ICC

_ or CAB should refuse to provide any relief. And this, _

even if the federal court suit is, as in the instant case,

based. upon Railway Labor Act claims far broader than

anything the administrative agency could have dealt

with if it wanted to. And if the employees first insti-

tute action in the federal courts they will be met.with

the claim of ‘‘primary jurisdiction’’ or failure to ex-

haust administrative remedies. The importance of a

‘ decision by this Court which removes this ‘‘Hobson’s

choice’’ needs no further emphasis. —

- The decision below, also throws into complete con-.

- fusion the entire problem of the relationship between

- the federal courts and the administrative agencies in —

_ areas where there is coneurrent jurisdiction. Let us

take one illustration that is currently very important.

Under Section 8(b) (4) of the Labor-Management Re-

lations Act (29 U.S.C. 158(b) (4) ) certain ‘‘secondary”’

- eonduct by a labor organization is made an unfair labor

practice subject to the jurisdiction of the National.

Labor Relations Board. Under Section 303 of the ~

same Act (29 U.S.C. 187) the identical conduct is made —

subject to a suit for damages in a federal court. The

decision of the court below would stand for the propo- -

sition that one who has filed a complaint before the

Board, and for any reason fasled to obtain the relief -

requested and within the jurisdiction of the Board to

22

grant may not thereafter file suit in the federal court,

for such suit would be a ‘‘collateral attack” on the

Board’s order. Such a result makes meaningless the

whole concept of concurrent jurisdiction. Exercise by ©

this Court of its supervisory powers to remove the

cloud which the decision below places upon this im-

cated.

portant aspect of federal wii ‘is ‘clearly—indi- pa

_ CON CLUSION

For the foregoing reasons, this petition: for a writ

of certiorari should be granted.

Respectfully submitted,

I. J. GRoMFINE |

- HERMAN STERNSTEIN

ee 7 | WILLIAM B. PEER

St. } 1155 15th Street, N. W.

SEP 1 1965 Washington, D. C.

| Attorneys for Petitioners

Of Counsel:

ZIMRING, GROMFINE AND STERNSTEIN

1155 15th Street, N. W.

Washington, D. C.

~5Such a result conflicts directly with the decisions of the

Sixth Circuit in United Brick Workers v. Deena Artware, Inc., —

198 F. 2d 637, (CA 6) and NLRB v. Deena Artware, Inc:, 198 F.

2d 645 (CA 6), Cert. denied, 345 U.S. 906, where the Court affirmed

a district court determination as ‘> whether as a matter of law”

certain conduct constituted prohibited secondary activity which

was contrary to that found by the Board.

™

la

APPENDIX A.

IN THE UNITED STATES COURT OF APPEALS |

FOR THE SEVENTH CIRCUIT

| SEPTEMBER Term, 1964, Aprin SEss1on, 1965. 3

| No. 14914

Joun J. OxNo, Davin J. Lanpry; on behalf of themselves

and all other -“‘second officers’’ in the employ of the

United Air: Lines, = —- situated, Plaintiffs-

Appellants,

We <

AR Live: Puce Association, and Unirep Arr Liyzs, Inc.,

, Defendants-A ppellees.

Appeal from the.United States District Court for the

Northern District of Illinois, Eastern Division.

June 4, 1965

Before Durry, CastLz and Masor, Circuit Judges.

Masor, Circuit Judge.. This action was brought for in-

. junctive relief, alleging conduct by defendants in violation

of the Railway Labor Act (45 U.S.C.A. Sec. 151 et seq.),

and for damages suffered by plaintiffs as a consequence

thereof. On September 29, 1964, United Air Lines, Inc.

(United) filed. a motion, supported by affidavit and brief,

to dismiss the complaint ‘‘for lack of jurisdiction and for

failure of plaintiffs to state a claim upon which relief could

be granted.’’ Plaintiffs filed a brief and affidavits in oppo-

sition thereto. The District Court, by order dated Novem- .

ber 16, 1964, granted defendants’ motion to dismiss. From

this order plaintiffs appeal.

Defendant. United i is a common carrier by air, engaged in

interstate and foreign commerce, and is subject to the pro- .

visions of the Railway Labor Act (the Railway Act) and

the Federal Aviation Act- (49 U.S.C.A. Sec. 1301 et 3eq.)

\

\

\

Qn:

(the Aviation Act). Defendant Air Lines Pilots Associa-

tion (ALPA) has at all times sinte May 31, 1961 been the

certified bargaining representative at United for a single .

craft or class of employees, consisting of all members of —

the flight deck crew, including pilots, co-pilots and flight

engineers. Prior to May 31, 1961, ALPA represented only

the pilots and co-pilots at United, the flight engineers being

separately represented by the UNA Chapter, Flight Engi-

neers International Association, AFL-CIO (FEIA)-

January 17, 1961, the National Mediation Board .(NMB)

decided that United’s entire flight ‘deck crew constituted a

single craft or class for purposes of collective bargaining:

under the Railway Act.! Thereupon, ALPA was elected

and later certified | as the representative of that craft or

. Class.

Plaintiffs Oling and Landry, on behalf of iiicaubalves and

others similarly situated, allegedly represent-a group of

about 233 employees of United who are classed as ‘‘second >

officers,’? which classification refers to those flight deck

_ erew members who perform the work of a ‘“‘flight engi-

neer.’” They comprise only a portion of such officers in the

vemploy of United. Prior to 1961, the second officers had -

been represented for collective bargaining with United by

FEIA in a bargaining unit confined to flight. engineers.

Plaintiffs had been members and officers of that union.

ALPA had been the bargaining representative of.the pilots .

(or ‘‘captains’’) and co-pilots (or ‘‘first officers’’). - A con-

_troversy had long existed between plaintiffs and ALPA as

to the proper representation of the former, which culmi-:

nated in the decision of NMB-above noted. Thus, while as

_ a result of that decision ALPA became the exclusive bar-

7 gaining representative of all pilots, co-pilots and flight engi-

_ neers in the employ of United, including plaintiffs, the

| latter refused to become members..

: 1 This decision was upheld by the Cont of Appeals for the Dis-

trict of Columbia, UNA Chapter, FEIA v. NMB, 294 F. 2d 905.

Sm:

. 3a

Capital Air Lines, Ine. (Capital) was also an air carrier

- subject to the provisions of the Railway Act. and the Avia-

tion Act. All of Capital’s pilots, co-pilots and flight engi-

neers were represented by ALPA for — of one

bargaining.

On August*11, 1960, United and Capital entered into am: —

agreement by the terms of which Capital was to be merged

into United. The agreement was subject to approval by

the Civil Aeronautics Board (CAB or the Board), and upon

execution of the agreement proceedings were commenced

by United to obtain CAB. approval. CAB, after hearing

and pursuant to Sec. 408 of the Aviation Act (49 U.S.C.A.

See. 1378), entered an'order dated April 3, 1961, approving

the merger. This order was later affirmed by the Court of

Appeals for the District of Columbia, Northwest Air Lines,

£%

wd

~” Ine. et al. v: CAB et al., 308 F.2d 395.

. Included in the terms of the merger order were a number

of labor protective provisions ordinarily imposed by CAB

upon a surviving carrier to protect employees against pos-

sible adverse effects resulting from the merger. Svc. 3 of -

such — (pertaining to seniority integration) pee

' vided: :

“Insofar as the merger affects the seniority rights

of the carriers’ employees, provisions shall be made |

for the integration of seniority lists in a fair and equi-

table manner, including, where applicable, agreement

' through collective bargaining between the carriers and

the representatives of the employees affected. In the-—

event of failure to agree, the dispute may be submitted

by either party for adjustment 1 in sannacqnee with Sec-.

tion 13.”’

Section 13 provides that in the event of the failure of the

parties ‘to agree, the controversy ‘‘may be referred by

either party, to an arbitration committee for consideration .

and determination.’? CAB reserved jurisdiction ‘‘to make

4a,

e

‘such amendments, modifications and additions to the labor

protective conditions imposed by paragraph 2 (c) above as

s

circumstances may require. ™ : F

On June 1, 1961, the effective date of the merger, the em-

ployees. of Capital became those of United, with ALPA as

the duly certified bargaining unit. Following, approval of

the mergér, ALPA began to implement its own established

procedures fer formulating an integrated seniority list for

all flight deck personnel on the merged ‘carrier. Pursuant

these procedures, representativés were chosen by ALPA -

from among the employees at each of the affected airlines

for the purpose of compiling a single seniority list. Such

‘ representatives were unable to resolve their differences

concerning seniority integration through negotiation and

mediation, and the matters in question were submitted to

arbitration in accordance with the e pegeodare set forth in

ALPA’s Policy Manual.

\ Two arbitration ‘propeediign were held, the first before

an arbitration board headed .by. Harry Abrahams (the

_ Abrahams arbitration) and the second before an arbitra- .

tionboard headed by David L.-Cole (the Cole arbitration).

_—United was not a party to either of these proceedings. The

~ Abrahams “award established a seniority integration list

for the employees ¢ of United, including those employed by

Capital previous tothe merger, but the matter of integrat-

ing United flight engineers into the seniority ‘list. was left-- .

for’determination: by the Cole arbitration as ALPA had not

_ been certified as\their representative until subsequent to.

the commencement of the seniority integration procedures.

‘The award of the Cole arbitration, issued on August 24,

1962, resolved the seniority status of United’s flight engi-

- neers, respecting their bidding rights to the pilot and co-»

pilot seats on United aircraft. The award stated:

‘‘There, are really three points of view presented at

our hearings—(1) those of the Capital group, (2) the

‘United pilots and second officers, and (3) that of a

5a me

gore of older flight engineers who have opposed

iation with ALPA over the years, [and who have

opposed] * * * all moves designed to blend the

flight. engineer and pilot functions into one category.

These are referred to as the career flight engineers,

* some 244 in number.”’

The third group, referred to as the “‘career flight

engineers,’’ are those allegedly represented by plaintiffs — j

in this proceeding. They presented their views to the Cole

_ board through their representatives, who made, opening

and closing arguments and submitted written statements

as evidence. In essence, their position was that they were:

entitled to full seniority credit as pilots for time spent as

flight ‘engineers when they had no seniority rights to. pilot- —

ing positions. The Cole board’ rejected their contentions and -

state its reasons therefor, concluding as follows:

' “For these reasons I shall fully protect the rights

‘ of the professional flight engineers to the third seat.

assignments, but I see no equitable basis for placing .

them on the pilot seniority list ahead of others |

already on the list or clearly entitled to be on list.’’

In the period tinowing the arbitration proceedings

plaintiffs protested to United that the awards as they

related to senjority were unfair and should- not be agreed

to. However, in June 1963, United and ALPA executed

ie agreement embodying the awards. The complaint

alleged that United accepted without challenge the resolu-

tion of the seniority issue.

On ‘November 27, 1963, plaintiffs petitioned CAB to

set aside and vacate the integrated seniority list and for

other relief, in an effort to-obtain their claimed additional

seniority rights. They alleged that the Board’s jurisdic-

tion to grant such relief was predicated On Sec. 408 of the ©

Aviation Agt, upon the Board’s own reservation. of juris-

diction in fi merger order to amend, modify or add to

6a

the labor protective provisions “‘as circumstances may

require,’’ and upon its labor protective provision. directing

the ‘‘integration of seniority lists in a fair and equitable

‘manner ** #9)

1 The petition prayed that CAB open the United-Capital

merger case for a hearing respecting petitioners’ claim .

‘that United and ALPA had failed to integrate ‘seniority.

- *fin-a fair and equitable manner’’; vacate the integrated

seniority list agreed to between United and ALPA on

June 11, 1963; order United and ALPA to refrain from

giving effect to that list, and require that petitioners be

given the same credit toward pilot and co-pilot seats as all

other members of the flight deck crew.

CAR, on April 24, 1964; gave consideration to the conten-

tions of the parties and to the documentary evidence,

including the text of the Abrahams and Cole arbitration

awards, and entered an order dismissing plaintiffs’ petition. ,

In the order it was scated, ‘‘We find no support in the

pleadings before us for the relief petitioners request * * *.’’

The Board rejected not only the ultimate request for pelief

but plaintiffs’ factual allegations, upon which relief was

sought. Thereupon, plaintiffs, without appealing from —

such order, commenced the instant proceedings, alleging

violations of the Railway Act. -

" While the parties in their briefs set forth the contested

issues in different phraseology, we think they are maenenrely ;

_ covered in United's brief as follows:

‘*Was the district court correct in dismissing the

complaint for lack of jurisdiction and for failure to .

state a claim upon which relief could be granted either

because:

(a) The subject matter of “the complaint was

before the C.A.B. on a petition filed by plaintiffs

and the decision rendered by the C.A.B. with

respect thereto could only be reviewed by a United

7a 2

pte ©

States Court of porn in accordance with the-

statutory review procedures prescribed by the

Federal Aviation Act; or

(b) The C.A.B. had exclusive jurisdiction under

the Federal Aviation Act over the subject matter

of the complaint thereby immunizing defendants’

conduct from the operation of all other laws

including bi Ralkwey Labor Act.’’ .

The surihdiction of CAB over snidorieg integration is

derived from its merger approval authority under See. 408

of the Aviation Act. Although there is no express mention

-in that section of the Board’s authority to prescribe either

labor protective conditions or seniority integration pro--

-cedures, its does provide that CAB shall approve mérgers

and other related transactions ‘‘upon such terms and condi-

tions as it shall find to be just and reasonable and with such

modifications as it may prescribe * * * unless the Board

finds that the * * * merger * * * will not be consistent

with the public interest.’’

We do not understand that plaintiffs challenge ‘the

Soard’s jurisdiction or its authority with respect to the

seniority integration provision embodied in its order.

Therefore, we cite without extended discussion only some

of the cases which sustain that jurisdiction and authority.

United States et al.:v. Lowden et al., 308 U.S. 225, 238;

Western Air Lines, Inc. v. Civil Aeronautics Board, 194

F.2d 211, 213-214; Kent v. Civil Aeronautics Board, 204

F.2d 263, 265; Outland et al. v. Civil Aeronautics Board,

284 F.2d 224, 228, and Brotherhood of Locomotive Engi-.

neers v. Chicago and North Western a eats Co., 314 F.2d.

424, 429.

Not only have the courts consistently held that the Board

has the jurisdiction and authority to impose labor protective

provisions, including that for seniority integration, as a

condition of merger approval but, in Kent, the reviewing

*

&

P rn

in J

8a

court sustained the authority of the Board to formulate its

own integratéd seniority list.- In doing so it stated

(page 265): |

‘‘Industrial strife may arise by reason of a: dispute

between the two or more employee groups as to how

a unified seniority list should be drawn. And when such.

a dispute develops, it is within the power of the Board

to order the carrier to follow whatever course is

necessary and appropriate. An overall supervision of

the merging carrier so as to protect adequately the

* public interest is what Sec. 408 (b) of the Act con-:

templates, and that is what these orders accomplish. -’

- The same power to order the initial integration justifies _.

the Board’s further requirement that the employer

refrain from making any labor contract in the future |

which will not conform to it.’’ .

Thus, we have a situation where the Board acting within:

its jurisdiction and authority gave its approval to «the

merger upon condition that certain labor protective pro-

visions be complied with, including that pertaining to

seniority integration as provided by the Cole arbitration

and as agreed to by | nited and ALPA.

Section 1006, 29 U.S.C.A. See. 1486, provides in material

part:

‘*{a) Any order, affirmative or negative, issued by

the Board or Administrator under this chapter * * *

shall be subject to review by the courts of appeals of

the United States or the United States Court of.

- Appeals for the District of Columbia upon petition,

filed * * * by any person disclosing a substantial

interest in. such order.

“is : * * *

‘¢(d) Upon transmittal of the petition to the Board.

or Administrator, the court shall have exclusive juris-

diction to affirm, modify, or-set aside the order

>

9a

complained of, in whole or in part, and if need be, to

order further proceedings by the Board or Adminis- |

trator. ome supplied. } :

“(f) The judgment — decree of the court affirm-

ing, modifying, or setting aside any such order of the |

Board or Administrator shall be subject only to review

by, the Supreme Court of the United States * * o.%

Thus, plaintiffs under this statute were afforded a right

to appeal to a United States Court of Appeals fora review .

‘of the proceedings by which the seniority list was prepared

and accepted by the Board. If they had done so, that Court

would have acquired exclusive jurisdiction to consider and

determine the merits, if any, of petitioners’ assault. on the

Board’s proceedings.

Plaintiffs, now met with the contention that they are not.

entitled to maintain the present suit because of failure to

“exhaust their statutory and administrative remedies, state

that before bringing the instant suit to remedy the dis-

crimination, and other Railway Act violations, they

exhausted their administrative remedies by filing ‘‘a peti-

tion with the Civil. Aeronautics Board seeking relief under

the employee protective conditions of the Board’s order

approving the merger * * *.’’? However, no reason, miuch

less excuse, is assigned for their failure to seek review of

the Board’s order in accordance with their statutory right.

The cases firmly establish the principle that where

Congress has provided a statutory procedure for the review

of an administrative order, such procedure is exclusive. A

~ recent case much in point is Whitney National Bank v. Bank

of New Orleans & Trust Co. et al., 379 U.S. 411. That case

involved the Bank Holding Company Act, 12 U.S.C.A.

See. 1842 (a), particularly Sec. 1848, which provided a

statutory procedure for review similar to that in the instant

case. Plaintiffs, instead of relying upon such procedure,

10a

sought relief i in an independent action which the Supreme

- Court denied.. The Court stated (page 420) :

=." ~ ee Congress has provided seakiitiny

review procedures designed to permit agency expertise.

to be brought to bear on particular problems, those

. procedures: are to be exclusive. See, e.g., ‘Callanan

Road Improvement Co. v. United States, 345 U.S. 507

(1953); Myers v. Bethlehem Shipbuilding Corp., 303

U.S. 41 (1938) ; Texas & Pac. R. Co. v. Abilene Cotton

Oi Co., 204 U.S. 426 (1907). Congress has set out in

the Bank Holding Company Act of 1956 a carefully

. planned .and comprehensive method for challenging

Board determinations. That action by Congress was

designed to permit an agency, expert in banking

matters, to explore and pass on the ramifications of a

proposed bank holding company arrangement. To

permit a district court tomake the initial determination

of a plan’s propriety would substantially decrease the

effectiveness of the statutory design.’’

‘The instant case is even stronger against plaintiffs on

the point under discussion because here the statute lodges

‘exclusive jurisdiction’’ in the reviewing court while in

Whitney such jurisdiction was found by implication.

Another case much in point is Holman et al. v. Southern

Airways, Inc., 210 F. Supp 407, wherein the District Court.

dismissed the complaint and denied. the relief requested

on the ground that the suit, couched in the terms of a viola-

tion of petitioners’ contract rights and of their right to

fair representation, was in reality an attempt to review a

CAB order. Among other — the Court stated (page

410) :

‘This Court is convinced that it tus not have juris-

diction to grant the plaintiffs the relief they seek, in-

asmuch as jurisdiction to review orders of the Civil

Aeronautics Board is vested exclusively in the Circuit

Courts of aan -

Oy

‘lla

On the following page the Court stated: ,

‘“‘Tt seems to this Court that if the plaintiffs are

dissatisfied with the order of the Board, they could,

pursuant to the provisions of 49 U.S.C.A. Sec. 1486,

of the Civil Aeronautics Act, procure a judicial review —

of the Order * * *. * * * However, in the face of the

expressed intention of the Congress to vest exclusive

jurisdiction in the various Courts of Appeals to review

orders of the Civil Aeronautics. Board, this Court feels’

that. any ‘relief, injunctive or otherwise, must be had

either from such Courts of Appeals or from the admin-

istrative agency in the whose jurisdiction the pro-

ceedings originated—in 1 this case, the Civil Aeronautics

Board.”’

. ?

We need not cite other cases which sustain the proposi-

_ tion that CAB has been entrusted by Congress with the

--power to make determinations affecting the protection of

employees in merger cases, including the integration. of

seniority lists. The CAB has made such a determination

here. In plain disregard of the express terms of Sec. 1006

of the Federal Aviation Act which prescribes a direct and |

exclusive method of review, plaintiffs instituted the present.

action in derogation of the well settled principle that

collateral attacks upon administrative orders are not per-

missible. See City of Tacoma v. Taxpayers of .Tacoma

et al., 357 U.S. 320, 334-337; Callanan Road Improvement

Co. v. United States et al., 345 U.S. 507, 512-513; Lambert.

Run Coal Co. v. Baltimore & Ohio R.R. Co, 258. US. 377,

381-382.

Plaintiffs. make a strenuous but haat effort to

extricate themselves from their present predicament, which

rises from the fact that after invoKing the jurisdiction of

CAB and obtaining an adverse decision, they failed to

pursue their statutory remedy for review. Plaintiffs in

their brief state:

vO) ——

‘‘The claims placed before the Court in the instant

-suit are broader and different from anything the

plaintiffs had placed before the CAB while exercising

their responsibility to exhaust all administrative

_ remedies before instituting this suit. [As shown, they

failed to pursue their statutory right to review.] The

CAB did not have jurisdiction to deal with those

claims, and could not, under any circumstances, have

provided the kind of relief which plaintiffs must

have in order to,remedy the Railway Labor Act

violations here involved, and which ‘is available to

them in a suit in a federal district court.’’

Plaintiffs ‘assert in their reply brief, ‘‘No order has been

issued by the CAB which would be negated by the relief:

plaintiffs here seek.’? A comparison of the record before

the CAB as to the relief there sought with that which

they now seek by their complaint demonstrates that this

statement is clearly erroneous. True, there are some

allegations in the complaint not made in plaintiffs’ petition |

before the Board, but in essence they are the same, although

in some instances couched in different phraseology.

_ A detailed comparison of the two instruments would |

unduly burden this opinion. We shall thus confine the

comparison to some of the more salient features. Plaintiffs

in their brief state : 7

‘*One. of the principal claims: raised by plaintiffs in

the complaint is the claim that ALPA has violated the

Railway Labor Act (45 U.S.C.A: 151, et seq.) by failing ©

in its statutory duty of fair representation, by dis-

criminating against plaintiffs, because of their alle-

giance to FEIA and for other invidious considerations,

in the negotiating of their seniority, wages, and working

conditions, As a concomitant of this claim, plaintiffs

claim that United has also violated the Railway. Labor

Act by entering into agreements with ALPA knowing

Na"

. 1a

that those agreements contain terms which were the

product of invidious discrimination against plaintiffs. i

In their petition before the Board they alleged’ that

‘‘United has failed to integrate the seniority of’ its em-

——pleyees-and the former Capital employees in a fair and

equitable manner by refusing to accord petitioners credit

for service performed, which service has been credited

other employees similarly situated’’; that ‘‘United has

invidiously discriminated against votitiowsre as a class

and has caused petitioners to suffer irreparable injury’’;

that ‘‘ALPA has willfully failed to perform ‘its statutory

duty as a collective bargaining agent of representing

petitioners, a minority of its members, fairly and without

prejudice,’’ and that ‘‘United and ALPA have acted in-

_ bad faith and in a deliberate effort to subvert an order

_ of the Civil Aeronautics Board which requires integration |

of seniority in a fair and equitable manner, by dis-

criminatorily distinguishing between petitioners and all

other members of the: bargaining unit.’

_ The close similarity between the charges made before

the Board and those in the instant complaint are apparent.

And even more important, the thrust of the relief sought

before the Board, as in the instant suit, rests on the premise

that the seniority integration approved by the Board was

-not accomplished ‘‘in a fair and equitable manner.’’ “The

Board found that it was so accomplished and rejected

plaintiffs’ contentions that United attempted to ‘‘subvert’’

the Board’s merger order, that United ‘‘invidiously dis-

criminated against petitioners as a class,’’ and that ALPA

‘‘willfully failed to perform its. arm vlad as collective

bargaining agent.’’

Even more important in comparing the two actions is the

request for relief. Before the Board, petitioners requested

that it ‘‘set aside and vacate the integrated seniority list

agreed to between United and ALPA on June 11, 1963,”

- and order them ‘‘to cease and desist giving effect i in any ~

14a

manner whatsoever to said. integrated list.”’ In the com- °

plaint, among other things plaintiffs request the Court ‘‘to

issue an order declaring null and void and unenforcible i in

any and al] respects Pilots’ System Seniority List presently

in effect on United, and enjoining ALPA and United from

giving effect in any manner whatever to that list:’’

It can hardly be doubted but that the heart of plaintiffs’

contention before the Board, as well as in its complaint, ©

is their request for relief from what they claim was. their

unfair listing relative to seniority rights. Other allegations

. in their complaint are merely subsidiary to and offered in |

support of that principal claim.

The conclusion is inescapable that plaintiffs bought a

review of the final order entered by CAB on April 24, 1964.

Stated otherwise, their action constitutes a-collateral attack

‘upon such order. As we have shown, this is not’ permissible

under the law. For this reason the District Court properly —

dismissed the complaiht. Such being our conclusion, we do

not reach the issue as\to whether the CAB had exclusive

jurisdiction, as argued \by defendants, or concurrent juris-

diction, as argued. by plaintiffs. In any event, its

- jurisdiction was invoked\ and pursued by plaintiffs .to the

point of an adverse decision, and they failed to seek relief

therefrom by a review in the manner provided by Congress.

The order appealed from i is

A true Copy:

Teste :

Clerk of the United States Court of

Appeals for the Seventh Circuit. —

>

15a

APPENDIX B

STATUTORY PROVISIONS INVOLVED |

Railway Labor Act, 45 U.S.C. 151 et seq.

Section 2, First, 45 U.S.C. 152, First:

“It shall be the duty of all carriers, their officers,

agents, and employees to exert every reasonable effort

to make and maintain agreements concerning rates of F

.pay, rules, and working, conditions, and to settle all

- disputes, whether arising out of the application of such

_ agreements or otherwise, in order to avoid any inter-

ruption to.commerce or to the operation of any carrier

_ growing out of any dispute between the carrier and the .

employees thereof.’” .

Section 2, Third, 45 U.S.C. 152, Third:

‘‘Representatives, for the purposes of this chapter,

shall be designated by the respective parties without

interference, influence, or coercion by either party over

_ the designation of representa 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

chapter need not be persons in the employ of the

carrier, and no carrier shall, by interference, influence,

or coercion seek in any manner to prevent the designa-

tion by its employees as their representatives of those

who or which are not employees of the carrier.”’

. Section 2, Fourth, 45 U.S.C. 152, Fourth:

‘*Fourth. Employees shall have the right to organize

and bargain collectively, through representatives of

a own choosing. The majority of any craft or class _—

~~ of employees shall have the right to determine who

- shall be the representative of the craft or class for the

purposes of this chapter. No garrier, its officers, or

l6a

agents shall densroedn any way ‘question 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 ini any way with .

‘the organization of its employees, or to use the funds

_ of the carrier in maintaining or assisting or contribut-

_ ing 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 of employees any dues, fees,

' assessments, or other contributions: payable to. labor

._ © organizations, or to collect or to assist in the collection —.

. of any such dues, fees, assessments, or other contribu-

tions: Provided, That nothing in this chapter shall be

. construed to prohibit a carrier from permitting an

‘’. employee, individually, or local representatives of

employees from conferring: with. management during

working hours without loss of time, or to prohibit a

carrier from furnishing free transportation. to its »

employees while engaged in the business of a labor

organization.’’

Federal Aviation Act, 49 U.S.C. 1301 et seq.

Section 408(b), 49 U.S.C, 1378(b) :

6 (iy) Any person seeking approval of a soiteolide-

tion, merger, purchase, lease, operating contract, or

acquisition of control, specified in subsection (a) of this

‘ section, shall present an application to the Board, and

thereupon the Board shall notify the persons involved

-in the consolidation, merger, purchase, lease, operating —

contract, or acquisition of control, and other persons

known to have a substantial interest in the proceeding,

of the time and place of a public hearing. Unless, after

.such hearing, the Board finds that the onsolidation,

*-merger, purchase, lease, operating contract, or. acquisi-

)

17a |

tion of control will not be consistent with the’ public

interest or that the conditions of this section will not

be fulfilled, it shall by order approve such consolida- ..

tion, merger, purchase, lease, operating contract; or

acquisition of control, upon such terms and conditions

as it shall find fo be just and reasonable and with such.

modifications as it may prescribe * * *.’’ . .

Section 1006, 29 U.S.C. 1486: x

(a) Any order, affirmative or negative, issued by ay the |

‘ Board ... under this chapter . . . shall be subject to

review by the courts of appeals of the United States or

the United States Court of Appeals for the District of

Columbia upon petition, filed within sixty days after the

entry of such order, by any person disclosing a sub-

stantial interest in such order. After the expiration .

of said sixty days a petition may be filed only by leave

of court upon a showing of reasonable grounds for

failure to file the petition theretofore.’’

*- * © s a

**(d) Upon transmittal of the petition to the Board or

Administrator, the gourt shall have exclusive jurisdic- : .

tion to affirm, modify, or set aside the order complained

of, in. whole or in part, and if need be, to order further

proceedings by the Board or Administrator. Upon

good cause shown and after reasonable notice to the

Board or Administrator, interlocutory relief may be |

granted by stay of the order or by such mandatory or

_ other relief as may be appropriate.’”

Section 1106, 49 U.S. C. 1506: i

**Nothing contained in this chapter shall in any way.

abridge or alter the remedies now existing at common _ .

law. or by statute, but the provisions of this chapter

are in accion to such remedies.”’