Petition for Writ of Certiorari — Northwest Airlines, Inc. v. Air Line Pilots Ass'n

Supreme Court brief1967

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"“IPREME COURT, * Be JUN 2¢ 90

JOHN F. Lyn de

a Inthe

| enen Court of 15 United Sue

Aa. 05

N - NORTHWEST AIRLINES, IN O,

: Petitioner,

va. : i

‘AIR LINE PILOTS-ASSOCIATION, INTERNATIONAL,

5 DAVID G. RALI. and R. E. LEE, |

PETITION fo A WRIT OF CERTIORARI TO THE 2

UNITED STATES COURT OF APPEALS 25

FOR THE EIGHTH CIRCUIT

Henry HALLApAy |

2400 First National Bank Building

ae tus Minneapolis, Minnesota 55402

3 Attorney * Petitioner

Dorsey, Manquarz, WINDHORST,

| West & Hatnapay |

Of Counsel

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CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED..

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ARGUMENT: | ae :

I. The question of the degree of finality of awards of airline

System Boards of Adjustment is a source of conflict between

air carriers and their employees, and will continue to

create conflict until it is Wen ane ecttled dy this

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III. Certiorari should be granted to drevent further miscon-

struction and misapplication of the decision of this Court

in Gunther v. San Diego. & Aris. B. Ry., 382 U.S. 257

(1965) ieee. fee.

CONCLUSION 7 .

APPENDIX A: , 3 :

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APPENDIX B :

Railway Labor Act, §3, 48 Stat. 1189 (1984) (prior to Amend- N

ments of 1966, 80 Stat. 208 „„ re

Railway Labor Act, §3, 48 Stat. 1189 (1934), as amended 45

// / A

Rallway Labor Act, $7, 44 Stat. 582 (1926), as amended 45

rr tosiettocenuusisacancnnie te cn

Railway Labor Act, 38, 44 Stat. 584 (1926), as amended 45

ß ˙ ——— ha a — ů

Railway Labor Act, 39, 44 Stat. 585 (1926), as amended 45

U.S.C. §159 (19600... ...... .. eie eee

Railway Labor Act, 3201, 49 Stat. 1189 We eee ee:

Railway Labor Act, §204, 49 Stat. 1189 (19386) 8

Railway Labor Act. 5206, 49 Stat. 1190 (1936) 8

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„

A “AUTHORITIES CITED |

er cs hen ty, Page

~ Airline Pilots Ass'n, Int'l, v. TransWorld Airlines, Inc., 203 f. j

— . MAB %⅛—T— ͤ— U (RF

American Airlines, Inc. v. Air Line Pilots Ass'n, int 'i. 91 F. Sup pv.

629 (B. D. N.Y. 1950) . . ses cian PE Aah ed AT Ren 9 ‘

Arnold v. United Air Lines, Inc., 296 F.2d 191 (7th Cir. 1961) 9

Baltimore & O. R. R. v. Brady, 288 U.S: 448 (1933) 22

Barrett v. Manufacturers Ry., 264 F. Supp. 376 (B. D. Mo. 1966). 28 3° |

Bates v. Northwest Airlines, Inc., 171 F.Supp. 273 (D. Minn. |

1 ee eee Wee 3 9

Beacon Theatres, Inc. v. Westover, 359 U.S. 500 (1969) 24

Blair v. Cleveland, C., C. & St. L. Ry., 45 F. 2d 792 (EB. D. III. 1931), Ris

aff'd 59 F.2d 478 (7th Cir. 1932). 8 21 5

Boos v. Railway Express Agency, Inc., 253 F. 2d 896 (8th Cir. A

1 W VVV 8 17-18

Bower v. Eastern Airlines, Inc., 214 F. 2d 628 (3d Cir. 1954), cert.

denied, 348 U.S. 871 (1954) . . 8

Brotherhood of Locomotive Engineers v. Louisville & N. R.R., 373

„ r Wen 1 n 32

0 Brotherhood of R.R. Signalmen v. Southern Ry., 254 F.Supp. 564 + °

(M.D. No. Car. 1966) „?!!!! daseit 28

Brotherhood of R. R. Trainmen v. Louisville & N. R. R., 334 F. 2d

79 (5th Cir. 1964) N c 18, 25

Brotherhood of Railway Clerks v. Atlantic Coast Line R.R., 253

F.2d 753 (4th Cir. A eae Nia eee 8 - 29

Brotherhood of Ry. and S.S. Clerks v. Atlantic Coast Line R. R.,

e 17

Callan v. Great Northern Ry., 299 F.2d 908 (5th Cir. 1961) 18

Capital Airways v. Air Line Pilots Ass’n, Int’l, 341 F.2d 288 (6th

Cir. 1965), cert. denied; 381 U.S. 913, 952 (BOOB)... . .. . 8,9

Crist v. Public Belt R. R. Comm’n, 93 F.Supp. 103 (E.D. La.

Re SAE CS A RTOS a 1 18

Dahlberg v. Pittsburgh & L. B. R. R., 138 F. 2d 121 {3d Cir. 1943)

B00 FFF 17, 19, 25

Dairy Queen; Inc. v. Wood, 369 U.S. 469 (1962) LA ERO Nic Mpeg 24

Edwards v. Capital Airlines, Inc., 176 F. 2d 755 ( D. C. Cir. 1949),

cert. denied, 338 U.S. 885 (1949 . 8

Farriss v. Alaska Airlines, 113 F. Supp. 907 (W. D. Wash. 1953). 9

Gunther v. San Diego & Aris. E. Ry., 38 2 U. 8. 257 1

. 3 10, 12, 18, 26,27, 28, 29, 30, 31, 32, 33, 34, 35

Hanks v. Delaware & H, R. Corp., 63 F.Supp. 161 (N. D. N. V.

P ͤͤ AAA r FF 18

Hanson v. Chesapeake & O. Ry., 236 F. Supp. 56 (S. D. W.Va. 1964)

%%% A ee. ...... ... . . ...e. 18, 88

Hartley v. Pan American Airways, Inc., 98 F.Supp. 247 (N. D. Cal.

„„ r ee T ͤ K 9

Hodges v, Atlantic Coast Line R. R., 310 F.2d 438 (5th Cir. 1962). 18

Hodges v. Atlantic Coast L. R.R., 363 F.2d 534 (6th Cir. 1966) 28

International Association of Machinists v. Central Airlines, Inc.,

372 U.S. 682 (1963) 8. 10,11, 18, 14, 16, 17, 20, 25, 26, 27, 31

— *

— * —— 2 — PPP A — *

8 Page

Jones ¥ v. central of Georgia Ry. 331 F. 2d 649 (5th Cir. 1964). 18, 28

. Kirby v. Pepnsylvania R. R., 188 F.2d 798 (8d Cir. 1961) 17

Larsen v. American Airlines, Inc., 313 F.2d 599 (2d Cir. 1963)... 8

Meeker & Co. v. Lehigh Valley R. R., 236 U.S. 412 (1918) 20, 21, 22

Metcalf v. National ‘Airlines, Inc., 271 F. 2d 817 (5th Cir. 1959)... 8

Mogis v. Lyman-Richey Sand & Gravel Corp., 189 F.2d 130 at 141

‘ JW esos 34

3 Moore v. IIlinois Cent. R.R., 312 U.S. 630 (1941) N 12

, Order of R. R. Telegraphers v. Union Pacific R. R., 231 F. Supp. 33

* ß ̃ Tr...... ĩð⁊ . ic nduee, 18

Order of Sleeping Car 8 v. 8 — Co., 47 F. Supp. 599 f

(B. D. Wis. 1942) VVV

Pennsylvania R. R. v. Day, 360 U.S. 548 (1959). — — 29

Railroad Trainmen et al. v. e River & Indiana R. Co., 353

U.S. 30 1 15). AB ESE Si 3 tt TT cc cc c (( 8 30, 32

Sigfred v. Pan American World Airways, — 230 F. 2d 13 (5th N

_ Cir. 1956), cert. denied, 351 U.S. 925 (1956) ~....... SE RE an I. N 8

Slocum v. Dela ware L. & W. R. R., 339 U.S. 239 (1950) 8 31. 32. 33

Southern Ry. v. Bichler, 56 F.2d 1010, 1018 (8th Cir. 1932) 21. 22

Taylor v. Hudson Rapid Tubes Corp., 362 F. 2d 748 (3d Cir. 1966). 28

Thomas v. New Tork, Cal. & St. L. R. R., 186 F. 2d 614 (6th Cir.

„ 17

Transcontinental and Western Afr, Inc. v. Koppal, 345 U. 8. 653

(1958) ............ n ee ene — * 8, 12, 13

’ Union-Pacific R. R. v. Price, 360 U.S. 601 (1959). . 25. 31. $2, 33

Walker v. Southern Ry., 386 U.S. 196 (1966) 12

Ward v. New Orleans Publie Belt R. R. Comm’n, 97 F. Supp. 1002

,! T fen se evweloseepusasdbumpanivoesbesie 18

Washington Terminal Co. v. Boswell, 124 F. 2d 236 (DC. Cir.

1941), aff'd, 319 U.S. 782 (1943) 14, 17, 18, 19, 22, 31

Wooley v. Dastern Air Lines, Inc., 250 F.2d 86 (5th Cir. 1957). *

‘cert. denied, 356 U.S. 981 8 6 — SER 8

— 3 5 7

STATUTES AND CONSTITUTION: a |

Interstate Commerce Act, 49 U.S.C. §16(2) 8 . 20, 21 :

‘Labor Management Relations Act, 5801. 30 —

Railway Labor Act: :

13, 48 Stat. 1189 (1984) URSIN TES LGD ORS ODED SOR ALE SEE SD 8 ‘|

subeoad 210, 11, 12, 14, 16, 17, 19, 20, 21, 23, 24, 26, 26, 27, 28, 29, 34 4

$7, 44 Stat. 582 (1926), as amended 45 U.S.C. 6167 (1864) 5,1 |

$8, 44 Stat. 584 (1926), as amended 45 U.S.C. 6188 (1964) 9,19

: 59, 44 Stat. 585 (1926), as amended 4 U.S. C. 5159 (1964) :

RIO ETRE EO MesserescesssesenesezersssnenessecessegegsertenteseeseceesesssseeesDp 10,19, 20

5 x $201, 49 Stat. 1189 (19356) re eee 17 .

„ 1204, 49 stat. 1189 (1986) eee eee 10, 12, 20

: $205, 49 Stat, 1190 (1986) ee eee eee 12, 18

rs. Const., amend. VII. ͥ eee —B — ae

“TEXTBOOK REFERENCES: BS *

: Jaffe, Tudicial Control of Administrative 8 356 ( 1968). e 25

In the )

| Supreme Court of the Anited States

a Oocrosm Ta, 1967

No.

NORTHWEST AIRLINES, Id,

, ee Petitioner,

V. ry ns

Am LINE PILOTS ASSOCIATION, INTERNATIONAL,

DAVID G. RALL and R F. LEE,

PETITION FOR A WRIT OF CERTIORARI TO n

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT —

Petitioner Northwest Airlines, Ine. (“NWA”) prays that

a writ of certiorari issue to review the judgment of the

United States Court of Appeals for the Eighth Circuit en-

tered on — 23, 1967. 59 55

OPINIONS BELOW |

Te opinion of the Court of Appeals is reported at 373 F. 2d

N 136 (Sth Cir. 1967), and is reprinted in Appendix A, infra,

Pp. 37-46. The opinion of the District Court (R. 73- 77)1 is

not t reported.

References to -M are to the certified transcript of the record in this cass

—

5 a JURISDICTION 2

The — of the Court of Appeals (Appendix ‘ por

p. 47) was entered on February 23, 1967. A petition for

rehearing was timely filed, and the Court of Appeals entered

its order denying said petition on March 30, 1967: The juris-

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

QUESTION PRESENTED

Ik a federal court and jury are competent to pass on cru-

cial elements of managerial imposition of safety disciplines

in an airline employee’s suit for alleged breach of contract,

is not the same competence available in an airline employee’s

suit to enforce an award growing out of the same disciplines -

: for the same ** breach of the same contract?

5 CONSTITUTIONAL AND STATUYORY PROVISIONS INVOLVED

The constitutional provision involved is U. S. Const.

amend. VII:

“In Suits at common law, where the value in controversy

shall exceed oe. erm the right to trial de jury

shall be presérved .

The statutes involved are y amen ub Act, Section 3,

48 Stat. 1189 (1934) ;? Section 7, 44 Stat. 582 (1926), as

amended 45 U.S. C. §157 (1964); Section 8, 44 Stat. 584

(1926), as amended 45 U.S. C. §158 (1964); Section 9, 44

Stat. 585 (1926), as amended 45 U.S.C. §159 (1964); See-

tion 201, 49 Stat. 1189 (1936); Section 204, 49 Stat. 1189

(1936); and Section 205, 49 Stat. 1190 (1936). Because of

the length of the provisions, tlie pertinent text is reprinted

in Appendix B, infra, pp. 57-64. The provisions of 28

U. S. C. A. §2403 may also be applicable. No court has cer-

3 *This section ‘was amended after the instant action was commenced. 80 Stat.

208 (1966), 45 U.S.C.A. §153. eae tee oF the cotta Gale and ether Oy

ee -

— — apt

tified to the Attorney General the fact that the constitution

ality of an Act of Congress affecting the public interest was

—

K E

drawn in question.

STATEMENT OF CASE |

This cause arises out of disciplinary action by NWA. which

was taken because of management’s morally justifiable and

legally required concern for the safety of airline passengers. :

On February 8, 1964, NWA discharged pilots David G. Ral]

and Robert E. Lee, along with flight engineer Franklin E.

Todd. R. 18, 22, 94. Rall was discharged because he had

violated the NWA rule, and the Air Line Pilots Association

(“ALPA”) rule as well, (R. 336) ‘prohibiting the use of al-

coholic beverages within 24 hours immediately preceding a

flight to which he was assigned as a ‘crew member. R. 18.

Fall had been assigned as Captain on Flight NO27 which was

. estate

Tek 2 9 — — a pe

2 he use of alcoholic beverages hy crew members while 6 on duty,

to carry military passengers on a DC 7 propeller- driven air-

plane from the Hawaiian Islands to Eniwetok Atoll on the

morning of January 1, 1964. R. 192, 389. Before Rall’s dis-

. charge NWa's investigation showed that he had reported

for Flight NO27 early on that New Year’s Day in an intoxi-

- cated condition. Rall had also suffered a head injury, which

had rendered him unconscious and caused him to bleed. R.

90-92, 97, 224.225. Rall’s physical condition had been weak- |

ened by drinking, unconsciousness, vomiting, and persistent

bleeding from his cuts, R. 196, 198, 394.396. ars

_ Co-pilot Lee was also discharged because he connived with

Rall and technically served as first pilot because, of Rall's

apparent physical disability. R. 22.

Flight Engineer Todd was also discharged because of his

drinking and because he had influenced and encouraged Rall,

on call, or during the 24-hour period immediately preceding departure of

any flight to which assigned as a crew member, is prohibited.” R. sis

peek 1 ee

Lee and other crew members to take Flight NO27 across the

Pacific on New Year's Day, 1964, knowing of Rall’s inca-

pacity. R. 941. NWA also. ‘meted out safety-oriented disci- .

pline against other crew members in its efforts to establish

management’s overwhelming need for physically, emotion-

ally-and morally fit flight crew members. In this respect,

the discharges of February 8, 1964, occurred only after the

terrifying evidence of the misconduct of Captain Rall, Co-

pilot Lee, and Flight Engineer Todd turned up in the course

of an entirely unrelated investigation. R. 158.

Notwithstanding the violation of the NWA and the ALPA

rule against pre-flight drinking, Rall, Lee and Todd all dis-

puted their discharges. Rall and Lee’s grievances (“minor

disputes”) were processed through the procedures estab- f

lished by the contracts between NWA and ALPA, each ulti-

mately appealing to separate but identical five-man System,

Boards of Adjustment. Todd, the Flight Engineer and third

in command of Flight NO27, also had a hearing before the

Flight Engineers System Board. The fiveman ALPA Sys-

tem Board, despite a finding of a violation of the NWA and

ALA rules, ordered NWA to reinstate Rall and Lee with

back pay. NWA’s discharge of Todd was sustained by his

System. Board, the same neutral chairman b+ aos as in

the Rall and Lee cases.

their

have devised the terms “minor dispute” for disagreements concerning the in-

terpretation of an existing contract, and “major disputes” which arise when a

contract is sought. See Brotherhood of R.R. Trainmen v. Chicago River

J.S. 30, 83 (1957); International Ass’n of Machinists v.

n 682 (1968).

8 li

aie

53°

174

2 1

8 R

;

Act, 44 Stat. 577 (1926), as amended 45 U.. C. 66 151.

188, prescribes different procedures for the settlement of disputes between

employees, depending on the nature of the dispute. Courts

This certiorari proceeding, therefore, grew out of a suit

commenced on February 11, 1965, in which respondents

sought enforcement of the two awards of the System Boards.

The paramount interests of safety compelled NWA to refuse

to comply with the Rall and Lee System Board awards, com-

; pelled it to resist their Petition for Enforcement, and com-

Pel it to continue that resistance now. It may be that: the

safety elements on a propeller-driven airplane are somewhat |

less critical than on a 600-mile per hour plus jet or the up-

: cecming supersonic transports. The fact still remains that

on flight crew drinking presents an ever-present danger to the

lives of millions of traveling Americans, and the ability of

management to’ protect against the extraordinary hazards

created by the use of alcohol by flight crew members is at the

very root of this dispute. See Mohler, Recent: Findings on

the Impairment of Airmanship by Alcohol, Federal Aviation

Agency pamphlet AM 66-29 (1966). The existence of this

1 safety factor in the face of the confusion and doubt over the

meaning and application of the Railway Labor Act, collec-

tive bargaining agreements entered into thereunder, common

carrier duties and responsibilities and constitutional ques-

tions of trial by jury call for prompt and definitive action hy

this Court. r a 8

. After the commencement of suit by respondents, and

os NWA’s answer, respondents made two motions for summary,

es judgment. The principal issue on both motions was the ques- |

, tion of whether NWA was entitled to a full-fledged judicial

trial on the issues growing out of the discharges of Rall and

On August 6, 1965, the District Court entered its first or-

der, holding then that “the decisions overwhelmingly sustain

: the right of the carrier to a trial de novo in the enforcement

proceedings. [Citing authority]. R. 53. :

After this decision, respondents made a second motion for

summary judgment, based upon the December 8,. 1965, deci-

sion of this Court in Gunther v. San Diego & Ariz. E. Ry.,

382 U.S. 257 (1965). The District Court entered its Order

of July 20, 1966, denying NWA de novo review of the

Awards. In a memorandum accompanying. that Order, the

Court certified, pursuant to 28 U.S. C. §1292(b), that the

“order denying Northwest Airlines, Inc. a dé novo review of

the award [sic] of the System Board of Adjustment herein

involves a controlling question of law about which there is

substantial ground for differences of opinion and that an im-

/ mediate appeal will materially advance the ultimate deter-

mination of this litigation.” R. 77.

| Petitioner’s timely application for. permission to appeal

was granted by the Court of Appeals for the Eighth Circuit

on August 15, 1967. The Court of Appeals, on February 23,

1967, affirmed the Order of the District Court denying NWA

the right to make a full judicial presentation of evidence in

support of the discharges of Rall and Lee. As heretofore

noted, rehearing was also denied.

The question of the finality of the Awards of the System

Boards herein was determined by both the District Court and

the Court of Appeals, not on the basis of the contract be-

‘tween the parties, but on the basis of an interpretation or

83 of the Railway Labor Act, which is expressly made in-

applicable to carriers by air. :

— * — — — 9 . V ²·Ü p e A Ne ap

ne 2

I. THE QUESTION OF THE DEGREE OF FINALITY OF AWARDS

OF AIRLINE SYSTEM BOARDS OF ADJUSTMENT is A

_ SOURCE OF CONFLICT BETWEEN AIR CARRIERS AND

THEIR EMPLOYEES, AND WILL CONTINUE TO CREATE co.

FLICT UNTIL IT IS. AUTHORITATIVELY SETTLED BY sad

count.

There are more than 25 3 United States com-

mercial airlines subject to the provisions of the Railway La-

bor Act. Each of these airlines has. contracts with unions

representing employees and establishing System Be Boards of

Adjustment. NWA, only one example, has contracts estab-

_ lishing separate System Boards for each of the fourteen

_ crafts of employees represented by a total of eight unions.®

The relevant provisions of all of the contracts dealing with

the finality to be accorded Awards of System Boards are vir-

_ tually identical, and the provisions involved in the instant

case are representative. They are printed at R. 5-12.

The question of the extent to which parties to Airline Sys-

tem Board contracts have ousted the traditional jurisdic- .

tion of Courts to hear suits for wrongful discharge thus af-

fects hundreds of thousands of employees in addition to re-

spondents Rall and Lee, and many airlines besides petitioner.

The public interest in safe air travel is also involved herein.

Historically, judicial treatment of questions . to

H P

Cae, Pons Society of Meteorologists; Brotherhood of Ry. and Steam-

I Northwest Airlines Foremen’s Association; Trans- .

port Workers of America,

. The separate crafts or classes represented by the unions are as follows:

Airline Flight Pursers, Flight Service Attendants and Stewardesses; Airline

Radio and Operators; Airline Navigators; Airline Pilots; Cleri-

and Passenger Service “Employees; Dispatchers; Flight

‘Airline System. Boards has been tentative, unsophisticated

and uncertain. ‘Basically, three issues have been before the

- courts concerning Awards by Airline System Boards, viz. :

_ (1) Must a discharged employee exhaust his’ administrative

remedy before commencing a suit for wrongful discharge?

(2) Does a federal district court have jurisdiction to con-

sider Awards of Airline System Boards of Adjustment?

and, the issue raised by this Petition, (3) To what extent

have parties to Airline System Board contracts destroyed the

competence of courts to hear suits involving a ‘claim of

wrongful discharge? 8

The question of whether an airline nities. must exhaust

his administrative remedies prior to bringing a suit for

wrongful discharge was settled by this Court in the first re- .

ported case which raised the issue. Transcontinental and

Western Air, Ino. v. Koppal, 345 U. S. 653 (1953).

The question of federal jurisdiction was answered in the

affirmative by this Court in International Association of Ma-

chinists v. Central Airlines, Inc., 372 U. S. 682 (1963), con-

‘trary to the two. earlier cases in which the issue had been

raised.

ö By tar the most widely litigated issue, and the issue which

nag not yet been settled by this Court, is the question of the

“finality” to be accorded Awards of Airline System Boards:

Certiorari has been men sought in five such cases,

TThe vitality of that decision is questioned in Larsen v. American Airlines,

Inc., 818 F.2d 599 (2d Cir. 1908).

Metcalf v. National Airlines, Inc., 271 F.2d 817 (Sth Cir. 1959); Airline

—.* TransWorld Airlines, Inc. ne 488 (W.D. Mo.

®*Capital Airways v. Air Line Pilots Ass’n, Int I. 341 F.2d 288 (6th Cir. 1965),

. denied, 381 U.S. 918, 982 (1968); Wooley v. Eastern Air Lines, Inc.,

and the issue has been raised fn five other cases, 1e besides the

instant case. 3

- This volume of litigation, and the Petitions for Certiorari,

. attest to th general importance of the issue. The confusion

surrounding’ the issue is apparent. For example, since the

System Board makes an “Award,” courts have confused Sys-

tem Boards with Boards of Arbitration. See Capital Airways

v. Air Line Pilote An, Int t, 341 F.2d 288 (6th Cir. 1968),

cert. denied, 381 U.S. 918, 952 (1965). 3

The only true arbitration provisions of the Act are found

in Sections 7-9. Section 7" provides that both major and

minor disputes may be settled by arbitration rather than

through mediation or submission to an “appropriate board

of adjustment“. Section 812 spells out the requisite and tech-

nical elements of an agreement to arbitrate, and Section 91

details the essentially mechanical method of énforcement of

the resulting arbitration award. reas : 2s

It seems rather elementary that when Airline System Board

agreements, such as that involved herein, do not comply

with the provisions of Section 8, they are not in fact agree-

ments to arbitrate, and therefore the enforcement provisions

of Section 9 are also inapplicable. Nonetheless, confusion be-

tweén enforcement of Airline System Board Awards and See-

tion 9 Arbitration Awards persists, and will eontinue unless

this Court grants certiorari. and settles the question. It is

not an answer to say that Section 9 arbitration is ad hoe and

voluntary while Airline System Boards are continuing and

D. ; Air-

lines, Inc. v. Air Line Pilots Ass’n, Int’l, 91 F. Supp. 629 (E.D. N.Y. 1950).

. Stat. 584 (1926), as amended, 48 U.S.C.. §158 (1964).

1844 Stat. 585 (1926), as amended, 45 U.S.C. §159 (1964),

compulsory, | because the question still remains as to the en-

forcement of Airline System Board Awards. Congress could

have made enforcement of Airline System Board Awards as

precise as that prescribed in Section 9, but it has not seen

fit to do so.

But an even more basic and fundamental confusion exists

in this case and others involving Airline System Boards, con-

cerning the distinction between Awards of the National Rail-

road Adjustment Board (“NRAB”) and Awards of Airline ;

‘System Boards.

Section 3 of the Act was expressly made inapplicable to

air carriers by §201 of the Act, 49° Stat. 1189 (1936), al-

though all of the other provisions of the Act do apply to ‘

air -carriers. Instead, air carriers and their employees

vere required by Section 204, 49 Stat. 1189 (1936) “to

establish a board of adjustment of jurisdiction not eaceed-

ing the jurisdiction which may be lawfully exercised by

' [railroad] system, group or regional boards of adjustment

under the authority of Section 3” of the Railway Labor Act

(emphasis supplied). It was because of the inapplicability ~

of §3 to airlines that this Court was called upon, in Central

Airlines, supra, to decide whether any basis of federal *

dietion existec.

Despite the ‘fact that §3 of the Act is ‘expressly made

- inapplicable to air carriers, courts, including the courts be-

low in the instant case, frequently have used decisions con-

struing §3 when determining the scope of review of Air-

line System Board Awards. Indeed, the District Court here-

in, having once denied respondents’ motion for summary

judgment, reversed itself and partially granted summary

judgment, basing the reversal on the decision in Gunther v.

San Diego & Ariz. Z. Ry., supra, a decision which, though

fraught with uncertainty, deals solely with the expressly in-

" i

applicable 53 of the Act. The Court of Appeals fell into the

same error. | e

Courts are not alone in their confusion over the effeet to

be given §3 in cases involving airlines, Litigants and labor

contract negotiators in this case and others are faced with

the same difficulties. Because some courts have applied §3

to airlines, despite the proscription in §201, both litigants

and negotiators find themselves occasionally inadvertantly

accepting the applicability of that section. If certiorari is

granted herein, the confusion can be halted and a decision

reached which will give airlines and their employees a re-

liable guide through future ‘negotiations or litigation.

Even more important, a definitive decision here will at

last mark out the quantum of finality which this Court has

80 far only termed “some degree“. International Asen. 8

Machinists v. Central Airlines, Ino, supra. With such a de-

cision in the case at bar, all air carriers and their employees

can be told and will know that unless they explicitly waive

court and constitutionally protected review on the merits of

grievances, a federal question is presented which will allow

resolution of legal issues by federal courts and factual issues

by juries. © . >

By such a decision, this Court can accomplish a number

of ends, all significant to sound labor relations and consistent

with due concern over uninterrupted and safe interstate

transportation, all valuable in the even handed administra-

tion of justice, all consonant with the principle of first re-

course to administrative remedies, and all reconcilable with ,

constitutional guarantees. The decision which reaches these

administrative ends is quite simple. It reduces itself to the

following step by step analysis. 1 8 n

1. Air carriers are required to provide contraetual griev-

ance machinery to handle disputes over contract interpreta-

tion and administration, including disciplinary action;

* a

. \ » f N

. ° . * » .

— — .

— - — 7 0 — = — ne — „

12 : ° »

2. Air carriers, their employees and unions must first In-

vin and comply with the contractual machinery before La)

resorting to self-help, or (b) filing suit;

3. When the contractual grievance machinery has bn

| completed, or while it is in progress, the moving party: ( air

carrier, union or employee) may bring a federal action to

a protect or enforce the contractual machinery or the results

thereof with the right to jury trial preserved on all aspects

which fall within the constitutional protection. 7

This kind of a decision will perhaps require re examina-

tion of Koppal but not of Moore v. Illinois Cent. R. R., 312

U.S. 630 (1941), Gunther or Walker v. Southern Ry., 385

U. S. 196 (1966), because they are under different law.

Any fear that this re examination may result in prolifera-

tion of airline labor litigation or grievances is unfounded.

The National Mediation Board can establish a National Air

Transport Adjustment Board (“NATAB”) to bring Airline

System Board cases within the umbrella of Gunther, and

open those awards only to the same extent as court review of

NRAB awards.

Railroad System Boards, 5 jurisdiction Section 204

Airline System Boards may not exceed, are permitted to be b

established by the provisions of §3 Second. §3 Second also

permits dissatisfied parties to revoke such a Railroad Sys-

tem Board arrangement, and to elect to come under the

jurisdietion of NRAB. But dissatisfled parties to Airline

System Boards have no such recourse. Although 3205 of

the Act (49 Stat: 1190 (1936) ) provides for the creation of

NATAB at such time as the National’ Mediation Board

(NMB) concludes that it is necessary for the “prompt and

orderly settlément of disputes,” no such NATAB has yet

_ been created, or even recommended. Vet, it is only NATAB,

if and when created, which will have powers and ae and

whose “findings and awards [shall be] enforced . . . in the

; 6

same manner and to the same extent as provided with refer - > ey

ence to [the NRAB] by section 153 of this title.” Railway

Labor Act, Section 205. Conversely, until NATAB is created,

Airline System Boards may have decisional finality power of

a lesser degree than NATAB. Consequently, the extent of

the power of the courts to review the Awards as final, or

something less than final, not yet settled by this Court, can

de settled by granting this Petition for Certio 3

Transcontinental and Western Air Lines o. Koppal; ru,

establishes the competence of federal courts to determine the

legal and factual merits of a dispute over the discharge of an

airline employee in his initial lawsuit. It is confusing, to

say the least, if the courts somehow lose their competence to

decide the legal and factual merits of the discharge merely

a because the matter arises in the form of a suit to enforce an

Airline System Board Award of reinstatement, while courts —

are still competent, to hear a suit for damages for wrongful ©

discharge. The issues to be decided are identical. The only

difference in court access is procedural, in the option of suit

or grievance by the employee or his union. If the airline em-

ployee opts to sue, he and the carrier get all the facts

including grave matters of air safety and aleshol. be-

fore a court and jury. If the employee follows the minor

dispute route, then what happens in court? That is the prob-

In International Ass’n of Machinists v. Central Airlines,

Inc., supra, this Court ruled that federal courts have jurisdic.

tion to entertain a suit under a complaint to enforce an Air-

line System Board Award. Contractual provisions broaden-

ing or limiting the scope of judicial review [degree of final-

ity] were also held within the parties’ competence.

Some semantic problems here appear. If “utter finality”

is agreed upon between an airline and its employees, then a

federal court would, arguably, have no jurisdiction other

"oY

14°

than to enforce an Airline System Board Award as if it were

an appellate court reviewing a jury verdict.. If “some degree ö

of finality” less than “utter” is agreed upon, then the scope

of federal review is expanded and the award may be given

prima facie effect or even the weight — of finality], per-

haps, of an expert opinion.

It is interesting that Section 3 First (p), as to railroads,

utilized a very similar ‘concept by giving NRAB division

Awards a prima facie “degree of finality”; and that such a

degree was likened, in Washington Terminal Co. v. Boswell,

124 F.2d 235 (D. C. Cir. 1941), aff'd by an equally divided

court, 319 U.S. 732 (1943), to the W of the opinion evi-

dence of an. expert. a

But Central Airlines leaves unanswered important ques-

tions of ‘whether contracts with provisions such as are here

concerned precludes judicial review on the merits. (“utter

finality”) or gives the Awards prima facie, expert or some

other degree of finality consistent with the Railway Labor

Act. ‘In short, the Central Airlines decision does not settle

the most. frequent, pervasive, and troublesome question in-

volving Awards of. Airline System Boards, and the issue is

_ , Pipe for consideration at this time.

The instant case does not involve an isolated contract and

a simple dispute between Messrs. Rall and Lee and NWA.

Rather, it involves questions of importance to the entire bil -

lion dollar airline industry and all of its hundreds of thou-

Sands. of employees, almost all being governed by contracts

containing “some degree of finality” provisions.

As noted, an employee who 1 ‘is discharged may-elect to pro-

ceed with a grievance before the Airline System Board or he

may commence ‘a suit for wrongful discharge and seek dam-

ages. he alternatives are mutually exclusive, and once one

route is chosen, the other is forever closed. Until the ques-

tion of the degree of finality problem is authoritatively

TCC

- *

15 P

settled by this Court, an employee must make his decision in

a vacuum, and must remain in doubt as to the advantages 8

one procedure against the other. ‘Similarly, air carriers,

faced with an Award they consider unjust and incorrect,

must know whether the Award will be summarily sustained,

or whether judicial review shall be permitted. Furthermore,

negotiators for both air carriers and unions have no way of

knowing what degree of finality” less than “utter finality” |

may lawfully be fixed for Airline System Board Awards.

Neither side can, therefore, foretell how far either may go in

imposing: or opposing safety discipline in a burgeoning in-

dustry. -

A prompt decision ~ this Court is necessary to avoid the

uncertainty and dispute permeating this cause. Further de-

lay in resolving these doubts will result in further litigation

between employees and air carriers, confuse contract nego-

tiations, unsettle fail-safe air carrier regulations and ham-

per, if not frustrate, expeditious treatment of pending griev-

ances” Can tate the nation’s carriers by air.

ll. THE COURT OF APPEALS HAS DECIDED THE QUESTION as

THE DEGREE OF FINALITY OF AWARDS OF AIRLINE SYS-

TEM BOARDS IN CONFLICT WITH DECISIONS or THIS

COURT AND IN CONFLICT WITH LONG-ESTABLISHED PRE-

CEDENTS IN THE COURTS OF APPEALS.

The Court of Appeals herein affirmed the ruling of the

District Court that NWA was not entitled to a full judicial

presentation of its evidence on the i issue of whether Captain

Rall and Co-pilot Lee were properly discharged. Neither

court examined the contract between the parties i in determin-

ing whether there was only “some degree of finality”, “utter

finality” ör something in between. Both. courts made the

silent assumption that the degree of finality of Awards of

the statutory NRAB and of contractual Airline System

ran

Boards was identical, and engrafted their interpretation of

the provisions of tlie inapplicable Section 3 of the Railway

Labor Act to the NWA-ALPA contract.

We have set forth in Part I of this Petition the reasons

why we believe that 83 of the Railway Labor Act, and

court decisions construing that section, are inapplicable to

Awards of ‘Airline System Boards. But if reference to

83 is permitted in determining the scope of review, the

decision below is inconsistent with long-established prece-

dents in the Courts of Appeals and overleaps constitutional |

jury rights. If, instead, reference to the applicable contract

| _is required to determine the degree of finality agreed upon,

then the.Court of Appeals’ decision herein is at odds with

International Ass’n of Machinists v. Central Airlines, supra. |

In either case, certiorari should be granted by reason of the

conflict between the decision of the Court below and decision

of this Court and long-established precedent. Moreover, cer-

tiorari should be . to elarify en comes is cor-

reet.

The Central Airlines ae may be read to require fed-

eral courts, in a suit to enforce an Airline System Board

Award, to consider two questions: (1) To what extent does

the contract provide for some degree of finality and thus com-

press or expand a judicial review of the Award? and (2)

Are these provisions consistent with the requirements of the

Railway Labor Act? Or that decision may be read as holding

that the System Board agreement involved therein, as a mat-

ter of law, foreclosed ee review * as a ministerial

matter.

Whichever alternative 8 of the Central Air-

lines decision is correct, it is clear that the.courts below in

the instant case chose neither. Instead, they merely exam- .

ined §3 of the Railway Labor Act, and then applied their

interpretation of that section to the parties herein, with-

out examining the applicable contract to determine whether

that result was warranted by the contract. Moreover} the de-

cision was reached by the courts below in ruling on a Motion

for Summary Judgment. | F | |

The decision of the Court of Appeals, then, conflicts with

the implicit holding of the Central Airlines case that judi-

cial review of Airline System Board Awards is determined.

_by reference to the applicable contract, not the statute. It

also conflicts with the plain language of 5201 of the Rail-

way Labor Act, which specifically excludes air carriers from

coverage under 83. i

But even if Central Airlines does permit courts to deter-

mine the finality of Airline System Board Awards and the

scope of -their judicial review by reference to §3 of the

Railway Labor Act rather than the ‘contract (which we dis-

pute), the decision of the Court of Appeals herein is in con-

flict with the cases construing that section and at odds with

_ NWA’s right to a trial by jury.“

No fewer than sixteen cases in Distriet Courts and Courts

of Appeals have held that NRAB enforcement suits proceed

de novo, and that a railroad may submit oral evidence on the

‘merits of NRAB Awards. All such NRAB Awards had

to be constitutionally defective in that they deprive parties of a jury trial.

The constitutional argument we make regarding the interpretation of §3

prior to the amendments (infra, pp. 49-57) applies with equal force to the

issue of the constitutionality of the 1966 amendments.

: . — wr ese TEER

W 8 , —— —

more than the “some degree of finality” which must attach

to Airline System Board Awards, equal to the degree of

finality which will be given to NATAB. Awards once it is

Vo doubt the leading authority on this issue is Washington

Terminal Co. v. Boswell, 124 F.2d 235 (D.C. Cir. 1941), af-

firmed by an equally divided court, 319 U.S. 732 (1943). The

Washington Terminal case is the first case to hold that a

District Court must conduct a de novo review of an award

of a Railroad Adjustment Board. | |

In Washington Terminal, ‘the Court of Appeals ruled that

in an employee’s suit for enforcement, the District Court

must conduct de novo review. Washington Terminal rejected

the employer’s due process objections on the ground that

the status quo remains in effect until the District Court has

conducted a full hearing. The Court reasoned : ö N

“Though the effects of an award favorable to an employee

are ‘substantial, they do not conclude the employer’s

rights. The Board cannot enforce its awards. That is

left for the courts to do. It can be done only in a suit de

novo. !?. . The carrier is limited in no way as to its

defenses or the evidence it may wish to present. Its day

in court in the enforcement .suit is a full one. That is

hardly disputed.” (Emphasis supplied.)

“°Because of its prima facie factual effect, the award | ,

may give the suit something more than the character of

(8th Cir. 1988); Callan v. Great Northern Ry., 299 F.2d .908 (5th Cir.

1961); Hodges v. Atlantic Coast Line R. R., 310 F.2d 438 (5th Cir. 1962);

Jones v. Central of Georgia Ry., 331 F.2d 649 (5th Cir, 1964); Brotherhood

of R. R. Trainmen v. Louisville & N. R. R., 334 F.2d 79 (5th Cir. 1964);

Order of Sleeping Gar Conductors-v. Pullman Co., 47 F.Supp. 599 (E. D.

Wis. 1942); Hanks v. Delaware & H. R. Corp., 63 F. Supp. 161 (N. D. N.Y.

1945); Crist v. Public Belt R. R. Comm'n, 98 F. Supp. 103 (E. D. La. 1950);

Ward v. New Orleens Public Belt R. R. Comm’n, 97 F.Supp. 1002 (E. D.

La. 1981); Order of R. R. Telegraphers v. Union Pacific R. R., 231 F. Supp.

33 (D. Colo. 1964); Hanson v. Chesapeake & O. Ry., 236 F.Supp. 56 (S. D.

“W.Va. 1964). In Part III of this Petition we consider the effect of Gunther

v. San Diego & Ariz. E. Ry., 382 U.S. 257 (1965), on these precedents.

— — aetiiy aes * SFE

a normal suit de novo. But the suit may be classified .

thus more accurately than as one for review proper.“

124 F. 2d at 244 (emphasis supplied).

In Dahlberg v. Pittsburgh & L. E. R. R., 138 F.2d 121 (3d

Cir. 1943), the Court of Appeals held that full judicial re-

view was required. It reasoned that there must be some

limitation on the meaning of the phrase “final and binding”

as used in §3 First (m). It suggested that the words were

used: . 8 : .

.. in the sense that the award is the definitive act of a.

mediative agency, binding until and unless it is set aside

in the manner prescribed, and that it was intended that

the Court should exercise broader powers than merely

directing coercive process to issue if satisfied that the

proceeding was authorized by law.“

138 F. 2d at 122. . g

Both Washington Terminal and Dahlberg squarely reached

the conclusion that trial in District Court proceeds de novo.

We cite in n. 15 the nunierous other authorities which reach - :

the same conclysion. No real purpose would be served in ex-

amining each of those cases here. The reasoning of some does

warrant special comment, however. | . ~

As previously noted, the previsions of §§ 7-9 of the Act |

deal with arbitration of disputes as contrasted with the Sys-

tem Board -involved herein. The Court in Brotherhood of

Raiba Clerks v. Atlantic Coast Line R. R., 253 F. 2d 753

(Ath Cir. 1958), reasoned that Congress must have intended

de novo review of NRAB Awards, because the plain language

of §3 First (p) required it. In providing specially for the

enforcement of awards of a board of arbitration created un- :

der §9, Congress had provided that the award simply be filed |

with the Clerk of District Court, and it would become con-

clusive upon the expiration of ten days unless impeachment

were sought onsthe specified limited grounds set forth in the

_ statute. The provisions of 83 First (p) are more elaborate.

Section 3 First (p) cannot be read to impose finality, the

Court concluded, for Congress has shown its awareness of a

method for providing. for finality and has. not chosen that

method in §3. The Court recognized that to foreclose de

novo review after a Board Award would be to ignore the

plainly different methods provided by two sections of the

same statute, or, to put it in context with Central Airlines,

the statutory degree of finality of NRAB awards would be-

come improperly. identified with that of Section 9 arbitration

awards despite Congress’ deliberate selection of completely

* different language. And not even the 1966 amendments to

; 83 engraft the “utter finality” approach: which is still pro-

vided’ in 59. F }

> _ . Again, assuming applicability of 83 to 8204 Airline Sys-

tem Board Awards, we cannot ignore the fact that language

of the Railway Labor Act (§3 First (p)) is almost identical

to that provided for Interstate Commerce Commission

(“ICC”) orders. 24 Stat. 384 (1887).2* It takes no concen-

tration to observe the identical nature of ICC enforcement

under §16(2) with that provided by §3 of the Railway Labor

Act. Hence, when Congress created §3 of the Railway Labor

_ Act with enforcement provisions practically copied from

816 (2) of. the Interstate Commerce Act, it guaranteed a full

de novo hearing. In Meeker & Co. v. Lehigh Valley R. R., 236

US. 412 (1915), this Court said:

‘1649 vs c. §16(2) provides as follows:

“(2) Proceedings in courts to enforce orders; costs; attorney’s feo. If

a carrier does not comply with an order for the payment of money . . . the

complainant ... may file in the district court of the United States

a complaint Such suit . . shall proceed in all respects like other

ctl suits for damage, except that onthe tial of such sult the findings and

order of the Commission shall be prima facie evidence of the facts therein

erer

court nor for costs at any subsequent stage of the proceedings unless they

accrue upon his appeal. If the plaintiff shall finally prevail he shall be al-

” | ——<_<

costs suit.”

5 et | 33

“[Section 16 (2)] only established a rebuttable presump-

tion. It cuts off no defense, interposes no obstacle to a

full contestation of all the issues, and takes no question

of fact from either court or jury. At most therefore it is

merely a rule of evidence. It does not abridge the right

of trial by jury or take away any of its incidents. Nor

does it in any wise work a denial of due process of law.”

[Emphasis supplied]. „

236 U.S. at 430. This language was quoted with Approval in

Southern Ry. v. Eichler, 56 F. 2d 1010, 1018 (8th Cir. 1982). |

In Blair v. Cleveland, C., C. & St. L. Ry., 45 F. 2d 792 (E. D.

III. 1931), aff’d 59 F. 2d 478 (7th Cir. 1932), the Court de-

5 scribed the hearing as follows:

“The hearing in this court is de novo, and the court is en-

titled to receive and consider evidence in addition to

‘that before the. Commission, but the prima facie case

made out by the findings and order of the Commission

will prevail unless overcome by evidence submitted by

defendants.” ae ae a a,

45 F.2d at 793.

It would be more than an anomaly if the later Congression-

al enactments in the Railway Labor Act, 33 “First (p)

and the Interstate Commerce Act, 49 U.S.C. §16(2) were

given such widely divergent effect as would result were this

Court to hold that 83. First (p) does not provide an eviden-

tiary hearing in “reviewing” NRAB awards. This is especial-

ly true since the Railway Labor Act provisions were enacted

not only long after the Interstate Commerce Act, but long

after the Meeker case. Congressional knowledge of this

Court's interpretation of §16(2) of the Interstate Commerce 3

Act must be presumed in such a situation. :

Moreover, although §16(2) of the Interstate Commerce

Act“ provides a separate non-reviewable method for the en-

forcement. of non-money Awards, Congress chose to enact

only one method for the enforcement of either e or non-

money NRAB Awards by 63 First (p). That section clearly

~ : id

contemplated a full hearing in District Court, at which the

findings of the NRAB constitute, by specific statutory lan-

guage, only prima facie evidence of the facts stated in those

findings.

Courts have also been concerned with the question of in-

suring rights guaranteed under the Constitution, when exam-

ining the enforcement procedures of the Railway Labor Act

and the Interstate Commerce Act. The answer has always

deen that the party who chose to take the dispute to the ad-

ministrative tribunal has made an election about which he

may not complain. The other party, the cases point out, is’

entitled to a full scale hearing in the enforcement proceed-

ings which provides these Constitutional necessities. E. g.,

Washington Terminal Co. v. Boswell, supra (Railway Labor

Act) ; Meeker & Co. v. Lehigh Valley R. R., supra (Interstate

Commerce Act); Baltimore & O. R. R. v. Brady, 2 U.S.

448 (1933) (Interstate Commerce Act).

In the Brady case, this Court held that one who submits an

issue to the ICC is bound by the decision. It explained:

“The fact that the Act merely makes the findings and re-

port of the Commission prima facie evidence and so pre-

serves the defendant’s right to contest the award gives

no support to plaintiffs contention that it does not bind

Fim. It is to be remembered that, by electing to call on

the Commission for the determination of his damages,

plaintiff waived his right to maintain an action at law

upon his claim. But the carriers made no such election.

Undoubtedly it was to the end that they be not denied

‘ the right of trial by jury that Congress saved their right

to be heard in court upon the merits of claims asserted

against them. The right of election given to a claimant

reasonably may have been deemed an adequate ground

for making the Commission’s award final us to him.”

288 U.S. at 458. (Emphasis supplied). ?

The Court in Southern Ry. v. sister, 56 F.2d 1010 (8th

ir. 1982), considered this same issue in .a, proceeding

brought to enforce an ICO award. The Court reversed the

ICC. It held that the evidence did not support the decision,

and defined the role of the Court as follows: et ane

“If an order for reparation is made by the Commission,

it can be enforced only by suit in some court of general .

- jurisdiction. Section 16, 49 USCA p. 6. Thus the con-

Stitutional provisions guaranteeing trial by jury and due

process of law (Const. U. S. Amendments 7 and 14) are

satisfied. Meeker & Co. v. Lehigh Valley R. R. Co., 236

U.S. 412, 35 S.Ct. 328, 59 L. Ed. 644, Ann. Cas. 1916B,

ow” . , 8 8

56 F.2d at. 1013. cal

The right to a jury trial is guaranteed to NWA by the.

Seventh Amendment to the United States Constitution.

“In Suits at common law, where the value in controversy

shall exceed twenty dollars, the right of trial by jury

shall be preserved. 5 :

U. S. Const. amend. VII.

NWA did not invoke the System Boards, It does invoke

the Constitution. 7

As the cases previously cited have shown, this constitu-

tional guarantee of. a jury trial is satisfied only by de

novo, hearing of the sort provided the employer under §3

First (p). But the holding of the Court below in this case,

by rejecting de novo review, deprives NWA of the right

toa jury trial under a contract permissibly establishing a

lesser degree of finality for an Airline System Board Award

than the Act prescribes for an NRAB award.

The basic issue involved in the dispute herein is whether

the discharge of Rall and Lee was demanded or justified by

. NWA’s safety duties. The fact that respondents seek equit-

able relief does not eliminate the right to a jury trial. Thus

n . . Ma . . . ‘ |

170ur claim of right to jury trial embraces the need for compulsory attendance .

of witnesses. cross-examination of all witnesses, and all of the other elements

essential to the maintenance of due ‘process of law. . on

24 ‘ . /

in Beacon Theatres, Inc. b. Westover, 359 U.S. 500 (1959),

the plaintiff brought in action for declaratory judgment,

seeking an injunction prohibiting defendant from instituting

an anti-trust suit for damages. Defendant counterclaimed

‘for damages. This Court held a jury trial essential. If anti-

trust issues are triable to a jury in a treble damage action,

it reasoned, then defendant could not be deprived of a jury

trial merely because plaintiff took advantage of the declara-

c tory judgment procedure and sued first. J ustice Black

__ Stressed that “only under the most imperative circumstances,

eireumstances which in view of the flexible procedures of the.

Federal Rules we cannot now anticipate, can the right to a

jury trial be lost through prior determination of equitable —

claims.” 359 U.S. at 510-511. ¥

Similarly, in Dairy Queen, Inc. v. Wood, 369 U.S. 469

e this Court required a trial by jury:

. [T]he district judge erred in refusing to grant 1 pe

e demand for a trial by jury on the factual is-

sues related to the question of whether there has been a

breach of contract. Since these issues are common with

those upon which respondents’ claim for equitable relief

is based, the legal claims involved in the action must be

determined prior to any final court determination of re-

spondents’ equitable claims.”

369 U.S. at 479.

We urge that NWA’s right to a fee trial 1 not

and cannot be abrogated merely because respondents sought

N equitable relief from the District Court. ;

The language of 83 First (m), when compared to the lan-

7 guage of $3 First (p), creates what has been referred to as

an enigma. §3 First (m) provides that the awards are to be

“final and binding”, while 83 First (p) . that * en-

foreement proceeding: ;

“Shall proceed in all respects as other 1 suits, except

that on the trial of such suit the fin and order of

the division of the Adjustment Board shall be prima

facie evidence of the facts therein stated. . . If the

petitioner shall finally prevail he shall be allowed a rea-

sonable attorney’s fee. . . . The district courts are em-

‘powered . . . to enforce or set aside the order of the

division of the Adjustment Board.” .

Faced with the explicit language of 63 First (p), courts,

as we have seen, ascribed to the language of §3 First (in) a

meaning of final administrative action, subject to court re-

view. (e. ., Dahlberg v. Pittsburgh & L. E. R. R., 138 F. 2d

121 (3d Cir. 1943); Brotherhood of R. R. Trainmen v. Louis-

ville & V. R. R., 334 F.2d 79 (5th Cir. 1964); Jones v. Cen-

tral of Georgia Ry, 331 F.2d 649 (5th Cir. 1964)), This re-

sult is consistent with the action of this Court in the face of

other statutes which provide for finality. Professor Louis

Jaffe, a widely acknowledged authority in Administrative

Law, states: “A provision merely making the action of an

officer ‘final’ is often held not to exclude review. It is some-

times said that such a provision emphasizes its administra-

tive finality.” (Emphasis supplied.) Jaffe, Judicial Control

of Administrative Action, 356 (1965).

It would seem to be clear from the foregoing tliat if judi-

cial scrutiny of Awards of Airline System Boards of. Ad-

justment is to be determined by reference to §3 of the Act,

the decision of the Court of Appeals is contrary to long estab-

lished precedents. If reference to the contract is required by

Central Airlines, the Court of Appeals has decided the issue

in a way in conflict with that case. In any event, without

"Clarification of what limited degree of finality airlines and

. unions may confer on their System Boards, or without an-

swer to the applicability of §3 to Airline System Boards, no

one can proceed to litigate or negotiate in this sensitive area

7 with any assurance of the legal or practical consequences.

On the question unanswered by the Eighth Circuit, it is

our position that the contract. involved herein requires a

fall de novo . in the ott for enforcement W it

did not give the System Board. Award „ like “utter

‘ finality. ”

The System’ Board Agreement was made in January, 1952

f That agreement sets forth language almost verbatim to that

in 83 First as then in force and interpreted. Thus, paragraph

Y of the Agreement provides that the decisions of the. Board

shall be “final and binding“. R. 9. And in paragraph (m)

it is said that “a majority vote of the Board shall be final,

binding and conelusive.“ R. 9. All rights, under the Rail -

way Labor Act, were preserved. R. 9-10.

It is patent that this language was selected i in the light of

the then known NRAB “degree of finality” decisions, viz.,

nine pre-1952 cases interpreting 83 of the Abt!“ as requiring

a full de novo review of NRAB Awards. The Court of Ap-

peals, without examining the meaning of the contract, none-

theless. summarily disposes of this argument on the ground |

that “Gunther interprets the statutory law as it has at all

times here material existed,” and, therefore, since 83 was

meant to be incorporated into the contract, “utter finality”

(the supposed interpretation of that section by Gunther) was

nunc pro tunc imported into the “some degree of finality”

mutual agreement of thirteen years standing.

This reasoning runs completely counter to the Central Air-

lines holding. It also misconstrues our argument, in that

it is based on a belief that we argued that §3 was to, be in-

corporated into the contract, and thus conceded that a later

different. C@nstruction or amendment of that section would

ipso facto change the meaning of the contract. No such ar-

gument was intended or made. The error was compounded

by the Court of Appeals when it proceeded (on assumption

rather than on an interpretation of the contract as required

18These cases are cited in n. 15 of this petition.

by Central Airlines) to hold that §3 forecloses judicial re-

view by imparting “atter finality’ to NRAB Awards and

therefore NWA agreed to this conclusion. _- |

Whatever may be the effect of Gunther, it certainly can-

not magically and unilaterally change the pre-1952 interpre-

tation of 83 to provide for anything more than “some degree

of finality”. The decision of the Court of Appeals results in

the meaning and impact of the contractual language being

changed with the Vicissitudes of litigation, between parties

6 foreign to that contract, and governed by a section of the

Railway Labor Act specifically made inapplicable to airline

contracts and the parties thereto. ~ 3

Under such circumstances, certiorari should be granted to

resolve ‘the conflict between the decision of the Court of

Appeals and long-established precedents of this and other

courts.

Ill. CERTIORARI SHOULD BE GRANTED To PREVENT FURTHER |

MISCONSTRUCTION AND MISAPPLICATION OF THE oec.

SION OF nus COURT IN GUNTHER v. SAN DIEGO & ARIZ.

k. RY., 382 U.S. 257 (1965). i, :

While it is our view, as more fully set out in Part I of this

Petition, that the decision of this Court in the Gunther case

is of no relevance to the instant case, since it involves an

interpretation of an inapplicable section of the Railway La-

bor Act, we deal with the case for two rather obvious reasons,

First, the. Gunther decision was relied upon by the courts

below in the instant case, and for this reason alone certiorari °

should be granted to prevent the further misapplication of

eases interpreting Section 3 to cases which do not arise un-

der Section 3. 9

Another reason for examining the Gunther ense is that

the opinion has been uncritically read and applied by Courts.

We therefore assume arguendo that the Gunther decision is

| relevant to the issues raised i in this Petition.

After the December 8, 1965, decision of this Court in

Gunther, several courts immediately interpreted that deci-

sion as giving “utter finality” to, and thus foreclosing judi-

eial review of, Awards of the NRAB. 19 In the instant case

the District Court and the Court of Appeals SO interpreted

. Gunther, and misapplied that interpretation to Awards of

Airline System Boards.

We submit that such an interpretation of Gunther is 15

correct for the following reasons: (1) the Gunther opinion

yields several “curiosities” if it rejects de novo review; (2)

the cases cited by the.Gunther Court in its opinion do not re-

- ject de novo review; (3) rejection of de novo review does

violence to the plain words of the statute, and obliterates the

carefully drawn distinction between §3 First (p) and other

statutory arbitration review provisions; (4) a ‘recent Con-

gressional amendment to §3 First (p) is wholly unnecessary

if de novo review was already foreclosed; and (5) denial

of de novo review infringes on carriers’ Constitutional right»

to jury trials. (This latter point has already been discussed

in part II of this Petition.)

The “curiosities” affecting the Gunther decision, if it is

read to reject de novo review, can be summarized: (1) The

Gunther opinion does not use the phrase. “de novo” in either

text or footnote. Neither does the opinion cite or in any other

way take notice of the overwhelming number of decisions

which uniformly hold that a trial de novo is required in an

NRAB enforcement proceeding. One would think that if

these cases were to be overruled and the de novo trial elimi-

. . Ry., 367 F.2d 134 (4th Cir. 1966); Hodges

v. Atlantic Coast L.. R. R., 363 F.2d 534 (5th Cir. 1966); Taylor v. Hudson

Rapid Tubes Corp., 362 F.2d 748 (3d Cir. 1966); Brotherhood of por

b ., 254 F. Supp. 564 (M.D. No. Car. 1966); and

- Barrett v. Manufacturers Ry., 254 F. Supp. 876 (E. D. Mo. 1966).

„

nated, some mention. of the phrase or reference to the cases

which employ it would have been made in the opinion. The

silence of this Court in this respect weighs heavily against

an interpretation of its opinion which would eliminate de

novo review. ier,

(2). Gunther does not discuss or even acknowledge dis-

sents by its author or by Justice Douglas in earlier cases be-

fore the Supreme Court involving §3. In Pennsylvania R.R. 7

v. Day, 360 U.S. 548 (1959), Justice Black said in his dis-

sent: ee 3 ae |

This case and Union Pacific R. R. v. Price appear to

foreclose de novo review for a dissatisfied employee.] In

contrast, however, a railroad may obtain a trial substan-

tially de novo of any award adverse to. it. For, under

Section 3 First (p) of the Act, if a carrier does not vol-

untarily comply with the Board’s award, including wage

awards for money damages, a wage earner can enforce

the Board’s order only by bringing, in a United States

District Court, a suit which ‘shall proceed in ali respects

as other civil suits, except that on the trial of such suit

the findings and order of the division of the Adjustment

. Board shall be prima facie evidence of the facts therein

stated ... 2” | . =o :

|. 360 U.S. at 558-559 (emphasis supplied). - Similarly, in

Union Pacifie R. R. v. Price, 360 U. S. 601 (1959), (cited in

(Gunther, 382 U. S. at 263), Justice Douglas had said, in a

dissent joined by Justice Black:

en ae

Tolerance of judicial review has been more and more

the rule as against the claim of administrative finality.

_[Citing authority]. The weight of the Administrative

° Procedure Act, 60 Stat. 243, 5 U.S. C. 81009, is on the

. _ side of judicial review, the finality of administrative ac-

tion being sanctioned only where ‘it is clear from the

statutory scheme that judicial review is precluded.”

360 U. S. at 619.

The pre- Gunther opinions of Justices Black and Douglas

. illustrated by the above quotations are certainly clear. Only

1 1 5

— —— SSD

230

this Court can tell whether those views were overruled in

Gunther without any mention whatever. We suggest that

Justice Black, speaking for this court, has not changed his

previous opinion in dissent ; we submit that NRAB Award

- peview is still de novo except cases in parity with the re-

markable eleven-year Gunther litigation over managerial pre.

rogatives versus contractual restraints. thereon. Moreover, as

we later show, Gunther was preoccupied with contract inter-

pretation and the authority of a federal court to consider the

merits of such an interpretation..by an expert, not factual

determination of the merits of cause for discharge.

(3) Finally, the assertion that the carrier was not en-

titled to de novo review in Gunther was made by neither of

the parties to the dispute. That issue was raised in an amicus

brief which cited none of the plethora of cases which guar-

antee the right to de novo review, but merely set forth cases

| arising under 8301 of the Labor Management Relations Act.

For that reason, this Court may inadvertently have used

language which is now seized upon by respondents and courts

to support a wholly unintended result.

The claim that Gunther rejects de novo review is infected

with more than curiosities. An analysis of the cases cited in

Gunther indicates that these cases do not support such a

claim. At 382 Us S. 263 in the Gunther opinion, this Court

says:

“In Brotherhood of Railroad Trainmen et al. v. ». Chicago

River & Indiana R. Co., 353 U.S. 30, the Court gave a

Board decision the same finality that a decision of arbi-

trators would have.” :

This statement is not accurate. The dispute between the

parties in Chicago River had been submitted to the NRAB

for only a few days when the legal proceedings were insti-

‘tuted. No decision had been rendered. The issue before this

Court was whether a railroad union can strike over matters

ö f 8

vending before the Adjustment Board. 353 U.S. at 37. This

Court held it could not. This is a far cry from a holding or

even an indication that would. preclude de novo review. ö

The Gunther opinion next quotes some of the language of

the opinion in Union ‘Pacific R. R. v. Price, 360 U.S. 601

| (1959). The language quoted at 382 U.S. 263, from page 616 9

of the Price opinion, is not complete. The entire passage is

set forth in full here, the portion italicized having been omit- g

ted in the Gunther quotation: a

ö “This grist of labor relations is such that the 3 5

scheme cannot realistically be squared with the conten- ;

tion that Congress did not purpose to foreclose litiga-

tion in the courts over grievances submitted to and dis-

posed of by the Board, past the action under §3 First (p)

. authorized against the noncomplying carrier, see Wash -

ington Terminal Co. v. Boswell, 75 U.S. App. D. C. 1, 124

F.2d 235, aff'd by an equally divided Court, 319 U.S.

ae 732, or the review sought of an award claimed to result

; 5 from a denial of due process of law, see Ellerd v. South--

ern Pacific, R. Co., 241 F.2d 541; Barnett v. Pennsyl-

vinia-Reading Seashore Lines, 245 F. 2d 579, 582. So far

as appears, all of the Courts of Appeals and District

Courts which have dealt with this problem have reached

the conclusion we reach here.”

360 U.S. at 616-617 (emphasis supplied).

The Price case, it can be seen, actually supports the claim

that de novo review is proper in NRAB enforcement pro-

ceedings. Moreover, the Price opinion deals with the ques-

tion of the remedies available to an employee who has chosen

the NRAB rather than a court, and who later is unhappy |

with his choice. Furthermore, Price approves Washington

Terminal (as does Central Airlines) and Gunther does not

even mention Washington Terminal which started the whole

“degree of finality” discussion.

Slocum v. Delaware L. & W. R. R., 339 U.S. 239 (1950),

(cited in Gunther, 382 U.S. at 261), involved a railroad

which had contracts with two separate unions. Each union

claimed its members were entitled to certain jobs. The rail-

road brought a declaratory judgment action seeking a de-

termination as to which one of the unions was entitled to

the jobs. This Court held that this sort of dispute must, be

submitted 2. the NRAB. Slocum one not bear on *

of finali

Brotherhood of Locomotive Engineers v. Louisville & N.

R. R., 373 U. S. 33 (1963) (eited i in Gunther, 382 U. S. at 263),

like Chicago River, involved the question of the right of a

railroad organization to strike, where the railroad had com- |

plied with an order for reinstatement but disputed the

amount of back pay. The case merely holds that there can

be no strike under such circumstances.

This Court notes in Gunther at the outset : pa

“We granted certiorari because the holding of the two

courts below seemed, in several respects, to run counter

to the requirements of the Railway Labor Act as we have

construed it.“

382 U.S. at 260.

The only cases cited by Justice Black in Gunther were

Chicago River, Price, Sloowm and Locomotive Engineers.

Presumably it is the construction of the Railway Labor Act

in the cited cases with which the holding of the “two courts

below” seemed to differ. We have seen above that these cases

do not detract from the de novo rule. And we have not found

one pre- Gunther case which questions that rule. The incon-

sistency between the lower court opinions and the cases cited

in Gunther, then, must be found in some area other than that

of de novo review. It is suggested that this inconsistency is

in the decision which purports to oust the jurisdiction of the

NRAB in disputes over alleged management prerogatives.

In Chicago River and Locomotive Engineers the labor or-

"” ganization sought to settle the dispute with the tools of eco-

re ————— — RAN

N nomic’ warfare, rather nea use the orderly processes of the

Railway Labor Act. And in Price the employee attempted

to abort the NRAB procedures which he had himself invoked:

by commencing an action for wrongful discharge, rather than

attempting to set the NRAB decision aside on the limited

grounds available to him. Slocum involved an employer who

sought to have the Court, rather than the NRAB, hear the

jurisdictional dispute. In each of the cases cited in Gunther,

the efforts aimed at avoiding the processes of the Act were

not permitted by this Court.

Gunther. involved the claim of the employer that the dis-

qualification of an employee is strictly a “management pre-

rogative” and that the NRAB had no jurisdiction to consider

the issue. The District Court concluded that disqualifica-

tion was indeed a management prerogative, unregulated by

the collective bargaining contract.

The Court of Appeals in Gunther was of the opinion that

the NRAB had exceeded its jurisdiction in considering the

matter, drawing a distinetion between discharge for cause,

and disqualification. 336 F.2d at 547. The Court of Appeals

also found disqualification to be a right. of management.

It is submitted that the holding of the “two courts below” |

in Gunther which was counter to this Court’s construction of

the Railway Labor Act and LMRA, as well, can be found only

by this analysis. The lower courts in Gunther. purported to

declare a class of subjects which were not within the juris-

diction of the NRAB. This Court would not permit that;

and in so ruling merely said that the merits of NRAB con-

tract interpretation could not be considered anew by a tederal

court. No issue of fact for trial by court or jury was in-

volved. No purpose would have been served by a remand in

Gunther for consideration as to whether Gunther need be

reinstated. The sole issue remaining was the amount of back

pay, on which/issue Gunther ordered a trial. The holding of

—

Gunther, despite or because of the language employed and

the circumstances included does not disturb the overwhelm- -

ing authority assuring a jury trial in the case at bar.

As we have shown, an interpretation of Gunther which

yields a conclusion that de novo review is not ‘permitted in-

fects that. opinion with curiosities, and makes the cases cited

-inapropos to that conclusion. In addition, such a reading

‘makes a recent congressional amendment to §3 of the Rail-

way Labor Act —* to be an elaborate waste of congres-

sional time.

It is an act of Congress which must be interpreted. In the

event of ambiguity, the intent of Congress must be examined.

Recent evidence of that intent can be found in the enactment

of amendments to 83 First, on June 20, 1966. 80 Stat. 208

(1966). These amendments, adopted more than six months

after the Gunther decision, eliminate the exception in §3

First (m) relating to money awards; and in 83 First (p)

the phrase “shall be conclusive on the parties“ i is substituted

for the phrase “shall be prima facie evidence of the facts

therein stated.” The amendments also add a proviso to §3

First (p) sharply. restricting the area in which a court is

tree to set aside an award.

It is a well established principle of statutory n

_ that “the legislature, in adopting an amendment of a statute,

intended to make some change in existing. law.” Mogis v.

Lyman-Richey Sand & Gravel Corp., 189 F.2d 130 at 141

(Sth Cir. 1951). [Cite U. S. case.] In the Mogis case, the

Court reasoned that, since a 1951 amendment to a statute ~

eliminated a filing requirement, filing was required prior to

the amendment. In the instant case, §§ 2(c), 2(d) and 2(q)

of the 1966 amendments eliminate the de novo requirement.

Therefore, de novo review was required prior to ‘the amend-

ments. 8 wis .

‘

—

‘

CONCLUSION

We urge, for the foregoing reasons, that certiorari be

granted to prevent further misconstruction and misapplica-

tion of this Court’s decision i in the Gunther case. In addition,

we urge that certiorari be granted to prevent engrafting Sec-

tion 3 of the Railway Labor Act onto contracts creating Air-

line System Boards of Adjustment except as specifically

agreed upon by the parties to those contracts. Finally, we

urge that certiorari be granted to settle a fundamental ques-

tion of law affecting the entire domestic airline industry, its

hundreds of thousands of employees, and all of the many

unions representing airline employees.

Respectfully submitted,

.. HENRY HALLADATC

2400 First National Bank Building

Minneapolis, Minnesota 55402

Attorney for Petitioner

Dorsgy, MARQUART, WINDHonrstT,

— West & HALLADAY

Of Counsel

| APPENDIX A

UNITED STATES COURT OF APPEALS

No. 18,523

Northwest Airlines, Ine, 1 Bhs

i | Appellant, | Appeal from the

V. United States Dis-

Air Line Pilots Association, Inter- ‘ict — for the

national, David G. Rall and R. E. District of Minne-

Lee, -- sota. pig |

Appellees. |

; [February 23, 1967.]

Before VAN OosruRHour, BLACKMUN and MEHaFFy, Circuit

Judges. | Ca

VAN OostERHOUT, Circuit Judge. |

This is an appeal by respondent Northwest Airlines, Inc.,

(NWA), from order entered on July 20; 1966, granting par-

tial summary. judgment to petitioners, Air Line Pilots As-

sociation (ALPA), David G. Rall and R. E. Lee. The ma-

terial portions of said order read: eee

“1. That the respondent, Northwest Airlines, Inc.,

is not entitled to a de novo review of the award of the

System Board of Adjustment involving the individual

petitioners, David G. Rall and R. E. Lee, with respect

to any of the issues alleged in respondent’s answer

to the petition herein. |

“2. That the award of the System Board of Ad.

justment. on the records reviewed by the Court in the

case of the individual petitioners named We was

not so’ arbitrary and capricious as to be wholly base-

less and completely without reason, and therefore that

defense is not sustained.

43. That respondent shall reinstate nene to

its employ in accordance with Award Nos. 5562 and

5563 of the System Board of Adjustment entered on

January 8, 1965, subject, however, to the right of the

respondent to limit, discharge or terminate petitioners.

employment based upon events occurring or conditions

existing after their discharge by the respondent, and

the Court reserves jurisdiction to determine whether

the events occurring or conditions existing after the

discharge of these petitioners affect their right of re-

instatement or limit the amount of back pay due them

under the System Board’s orders, and reserves juris-

_ diction as to the question of attorneys’ fees to be al-

lowed petitioners as provided in Section 153 First (p)

of the Railway Labor Act. 3 |

44. J — shall be entered a Excep-

tions are reserv

The District cab made a 28 U. 80. A. 31292 (b) deter-

mination that the order denying NWA a de novo review of

the System Board of Adjustment award involves a control-,

ling question of law about which there is a substantial dif-

ference of opinion and that an immediate appeal will ma-

terially advance the ultimate determination of this litiga-

tion; that & lengthy trial on questions as to matters occur-

| ring} subsequent to the discharge may be avoided in the event

N the trial court has erred in its determination of the issues

relating to de novo review and the issue as to whether the

determination of the System Board was „ arbitrary or ca-

pricious. :

This. court by 8 of avid 15, 1966, authorized such

7 interlocutory appeal, and the appeal has been timely taken.

——— NWA. in its brief makes no contention that the court

committed error in its dete ination that the award is not

issue is not before us. The notice of appeal is taken from

the July 20, 1966, order which includes resolution of this

NWA has failed tö demonstrate that the court erred in item

two of its order, supra.

particularly, a right to present oral testimony on the valid-

Rall and Lee are entitled to reinstatement. The yalidity of

the trial court’s decision turns upon the finality to be ac-

corded the Board’s determination on the reinstatement is-

sue. For reasons hereinafter set forth, we hold that the

trial court correctly determined that the portion of the

without power to redetermine such issue.

The rather extensive record. facts bearing upon the reason

for the discharge and. the basis for the reinstatement have

no direct bearing upon the issue here presented and hence

the facts will be stated summarily. First Pilot Rall was

permanently discharged for a violation of a NWA rule pro-

hibiting a pilot from using intoxicants within twenty-four :

hours of the commencement of a flight. Lee was discharged

for acting as chief pilot on a flight. with Rall knowing the

latter had an apparent physical deficiency caused by the

“use of intoxicants. Rall and Lee exhausted their grievance

procedure provided by the contract existing between ALPA,

the authorized bargaining agent for the pilots, and NWA.

On January 11; 1952, in conformity to and in compliance

with 45 U.8.C.4. §184, ALPA and NWA entered into- an

agreement. still in force, creating the Northwest Airlines

Pilots’ System Board of Adjustment to decide minor dis-

arbitrary or capricious. By reply brief, NWA-urges such

sue. We hold such issue is raised by the appeal and that

The basie issue presented by this appeal is whether the

trial court erred in denying NWA a de novo trial—more |

ity of the System Board of Adjustment award determining

award adjudicating that Rall and Lee were entitled to re-

instatement is final and conclusive and that the court is

, a 2 * 2 — 5 ——

on > eet — —᷑——ä — —

- ——— nem 2 A Sin SO — 2 — — ites . =

j r > *

7, 7 ? 5

40 :

. putes arising under the terms of the working agreement be-

tween ALPA and NWA. The agreement provides that a

decision can be made by a majority of the Board members

and that the Board’s decision on matters properly referable

to it “shall be final and binding upon the parties.” It is un-

disputed that the System Board which heard these cases was

constituted in the manner provided by the agreement and

authorized by statute and that after an evidentiary hearing,

the Board majority by a written final order directed rein-

statement of Rall as of November 1, 1964, and Lee as of May

1, 1964.

The controversy submitted to the Board falls in the minor.

dispute category over which 9 Board was given jurisdic-

tion.

NWA having failed to comply with the award, the peti-

tioners commenced this action in the District Court for the

enforcement thereof on February 10, 1965. The District

Court by memorandum opinion and order filed August 6,

1965, denied ALPA’s motion for partial summary judgment

based upon the same grounds as urged in the motion, the sus-

taining of which gives rise to the present appeal.

After the decision of. the Supreme Court in Gunther v.

San Diego & Arizona Eastern R. Co., 382 U.S. 257, decided

December 8, 1965, respondent again filed its motion for par-

tial summary judgment, which motion was sustained by the

court order herein appealed from.

The trial court, in a very well-considered unreported opin-

ion filed March 7, 1966, with which we fully agree, states:

“However, it is now ‘perfectly clear, . . . that in

Gunther the Court summarily has swept aside all former

uncertainty as to the intent of Congress.in the enact-

ment of Section 153 of the Railway Labor Act and par-

supa Sections 153 First (m) and 153 First (p).

7 . Gunther has limited the trial de novo to the back

pay due the employee under the Board’s award and any

other issue decided by the Board is to be accepted by the

District Court. In other words, the court must accept

the findings of. the Board and is empowered to enforce

them by mandamus or otherwise. The only fact issue for

‘the court to determine ig the amount of the money award

based on the Board's findings and such additional evi-

dence.as may bear upon the amount.” |

.Gunther, an engineer, was discharged for physical dis-

ability determined on the basis of a report of the railway’s

physician. The NRAB, to whom the dispute was submitted

after the exhaustion of all remędies at the company level,

after a kull hearing ordered Gunther reinstated. Gunther ap-

plied to the District Court for enforcement. Enforcement

was denied. The Court of Appeals affirmed. The Supreme

Court reversed, stating inter alia:

“Section 3 First (m) provides that Adjustment Board

awards shall be final and binding upon both parties to 5

the dispute, except insofar as they shall contain a money

award.“ The award of the Board in this case, based on

the central finding that petitioner was wrongfully re-

moved from service is twofold, consisting both of an or-

der of reinstatement and the money award for lost earn-

ings. Thus there arises the question of whether the Dis-

triet Court may open up the Board's finding on the

merits that the railroad wrongfully removed petitioner

from his job merely because one part of the Board's or-

der contained a money award. We hold it cannot. This

Court time and again has emphasized and re-emphasized

that Congress intended minor grievances of railroad

workers to be decided finally by the Railroad Ajustment

Board. ae

“The Railway Labor Act as construed in the foregoing |

and. other opinions of this Court does not allow a federal

district court to review an Adjustment Board’s deter-

mination of the merits of a grievance merely because a

part of the Board’s award, growing from its determina-

tion on the merits, is a money award. The basic griev-

ance here—that is, the complaint that petitioner has

deen wrongfully removed from active service as an en-

gineer because of health—has been finally, completely,

and irrevocably settled by the Adjustment Board’s deci-

sion. Consequently, the merits of the wrongful removal

issue as decided by the Adjustment Board must be ac-

cepted by the District Court.” 382 U.S. 257, 263-64.

We completely agree with the trial court’s view that the

Gunther opinion as a whole, and the above quoted language

in particular, compels a holding in this case that the System

Adjustment Board’s determination that Rall and Lee are en-

titled to reinstatement is final, conclusive and 2 and

must be accepted by the courts.

It is true as argued by NWA that many G of Appeal

and Distriet Court cases prior to Gunther have held other-

wise. Such cases were cited and relied upon by the trial court

in its memorandum opinion of August 6, 1965. The validity

of such opinions has been struck down by Gunther. Post-

Gunther cases have uniformly construed Gunther in the

same manner as the trial court here. Brotherhood of Rail- =

road Trainmen v. Denver c Rio Grande Western R. R., 10

Cir., F.2d — (Dec. 28, 1966); Hodges v. Atlantic Coast

Line R.R., 5 Cir., 363 F.2d 534; Kemp v. Atchison, Topeka &

‘Santa Fe Ry., 5 Cir., 358 F.2d 722.

NWA cuneate its position by stating that if Gunther

is interpreted as foreclosing a de novo hearing on the rein-

statement issue, it reaches a result:

(1) Not sought by either party in Gunther,

(2) Contrary to the opinions of the author of the

Gunther opinion, expressed in earlier dissents; N

(3) Contrary to every case decided by every court

considering the issue prior to Gunther;

(4) Contrary to the provisions of the United States

Constitution; ; Ms

(5) Irrelevant to the issues considered by the cases

cited in the Gunther opinion;

;

(086) Obliterating the distinction created by Congress

between 45 U.S.C. 8153 and §§ 157-159; and between

9184 and 8185; * ö

(7). Ignoring the plain language of 3183 First (p);

and 8

(8) Not reached by Congress until more than six

months after the Gunther decision.

Many of such contentions’ have already been answered. It |

is conceded that Gunther is the first Supreme Court case

squarely adjudicating the issue before us. When the Su-

preme Court has spoken clearly upon the most recent occa-

sion on which the pertinent issue has been considered, lower

courts are bound to follow the pronouncements of law made.

In Gunther, the award was made by the National Railroad

Adjustment Board created by 45 U. S. C. A. 8153. In our

present case, the award was made by a System Adjustment

Board created by contract pursuant to statutory authority

found in 45 U.S. C. A. 8184. Under the latter section airline

employees and labor Tepresentatives are authorized and di-

reeted to establish by contract System Boards of Adjustment

having jurisdiction not exceeding that of 9153 boards. It is

conceded that jurisdiction equal to that of 5153 boards may

be established. . aR en gt ices |

hoe” heretofore pointed out, the contract creating the Sys-

tem Board is broad and provides for the finality of Board

rulings. NWA argues that prior to Gunther de novo reviews

existed under the circumstances here. present and that the

parties by ‘their contract could give the Board no greater

power than existed by law in a 8133 Board. We believe such

argument is based on a false premise. Gunther interprets the

statutory law as it has at all times here material existed and

does not purport to change any previous authoritative Su-

preme Court. decision interpreting the statutory provisions

with respect to the scope of review of a board’s nonmonetary

award. 9 Pie

International Ase’n of Machinists v. Central Airlines, Inc.,

372 U.S. 682, holds that contracts and the adjustment boards

for which they provide are creations of federal law and

bound to the statute (§184) and its policy and are governed

by federal law, and “that the federal law would look with

favor upon contractual provisions affording some degree of

finality to system board awards.” 372 U.S. 682, 694. See

International Ass’n of Machinists v. N orthwwest Aiclines,

Inc., 8 Cir., 304 F.2d 206, 211.

Title 45 U. S. C. A. §153 was amended 1 to Gunther

by Public Law 89-456, 80 Stat. 208, effective June 20, 1966.

The second sentence of §153 First (m) reading, “A copy of

the awards shall be furnished to the respective parties to the

controversy, and the awards shall be final and binding upon

both parties to the dispute, except. insofar as they shall con-

tain a money award.” was amended by striking therefrom

the words “except insofar as they shall contain a money

award.“ The second sentence of §153 First (p) was amended

by striking therefrom the words “shall be prima facie evi-

. dence of the facts therein stated” and inserting in lieu there-

of, “shall be conclusive on the parties. » A new paragraph

(q) was added giving either the carrier or the employees a

right to petition to the district court for review. It again pro-

vides that the Board’s order shall be conclusive and goes on

to say that it may be set aside. if beyond the Board’s jurisdie-

tion or for fraud or corruption.

NWA urges that Congress in making the foregoing amend-

ments reflects its belief that the act before amendment pro-

vided. for de novo review. Such argument is not persuasive.

The prineipal accomplishment of the amendment is to at-

tach finality also to the money award, an issue on which

Gunther held courts had power to consider new evidence. See

Brotherhood of Railroad Trainmen v. Denver & Rio Grande

Western R. R., supra. 3

The issue of the court’s jurisdiction was not raised in the

trial court. By reply briet, NWA urges that $153 First (p)

contains the exclusive provision for jurisdiction and that it

_ likewise contains the provision that the Board’s award

“shall be prima facie evidence of facts therein stated.” The

first sentence of such section is broad, reading: 5

“If a carrier does not comply with an order of a divi. |

sion of the Adjustment Board within the time limit in .

such order, the petitioner, or any person for whose bene-

fit such order was made, may file in the District Court

of the United States for the district in which he resides

or in which is located the principal operating office of

the carrier, or through which the carrier operates, a

petition. setting forth briefly the causes for which he

claims relief, and the order. of the division of the Ad-

justment Board in the premises.“ a may:

The quoted section appears to be broad enough to confer jur-

isdiction. We do not believe that the asserted inconsistency

between sub-sections (p) and (m) goes to the extent of

_ destroying jurisdiction. It is a familiar rule of statutory con-

struction that Statutes must be read together and that the

legislative intent must be given effect if possible. See 82

C. J. S. Statutes §§ 345, 366, and cases there cited.

Gunther expressly holds that the §153 First (m) provi-

sion of finality controls as to nonmonetary awards. The jur-

isdictional issue is not discussed in Gunther. Federal courts

are bound to satisfy themselves with respect to jurisdiction,

It is interesting to note that the Tenth Circuit in Brotherhood of.

Railroad Trainmen determined that the 1966 amendments, which be-

whether the issue is raised or not. Gunther obviously is de-

cided upon the basis that jurisdiction exists as to the money

award. ; igs

It is quite true, as urged by NWA, that the Seventh

Amendment guarantees trial by j jury in suits of common law.

However, it is equally well- settled that a right to a jury trial

may be waived. Here the parties by their contract providing

‘for final determination of minor disputes by a Systems

Board authorized by §184 waived any constitutional right

they might have had to a jury trial. Moreover, actions to en-

force awards under arbitration Agreements or statutes were

not known to the common law. Courts in furtherance of the

express policy favoring compulsory arbitration in labor dis-

putes have customarily limited the scope of review of arbitra-

tion awards. Gunther v. San Diego & Arizona Eastern Ry.,

supra; United Steel Workers v. Enterprise Wheel & Car

Corp., 363 U. S. 598, 596; Brotherhood of Railroad Trainmen

v. Denver & Rio Grande N. R., supra. A contrary ruling on

the jury trial issue would upset a long line of cases =

review of arbitration awards. .

We have given careful consideration to all the contentions

vigorously urged by able counsel. We hold that the trial

court correctly determined that the award made was not ar-

ditrary or capricious and that NWA is not entitled to a de

novo review of the portion of the aware, * ä

a ment of Rall and Lee.

Affirmed. .

A true copy. , ft :

Attest: : ate

_ Clerk, J. 8. Court of n Bighth Cirouit.

JUDGMENT

UNITED STATES COURT OF APPEALS -

For the Eighth Circuit

No. 18,523 September Term, 1966

Northwest Airlines, Inc., . N

Appellant,

VS.

Air Line Pilots Association, International, David G. Rall

and R. E. Lee, ;

_ Appellees.

Appeal from the United States. District Court for the Dis-

trict of Minnesota.

Ins Cause came on to be heard on the record from thé.

United States District Court for the District of Minnesota,

and was argued’ by counsel. :

Ox ConsmeraTiIon WHERPOF, it is now here ordered and

adjudged by this Court, that the judgment of the said Dis-

: biet Court, in this cause, be, and the same is hereby, affirmed.

February 23,1967 ~~ .

Order entered in accordance with Opinion.

/s/ Robert C. Tucker |

Clerk, U. 8. Court of Appeals

for the Eighth Circuit

fe :

„*

—

27 .

* 7 .*

„ “Ne 0

—

* *

. .

0 „

* .

5 —

7 .

| . ( "9

Railway Labor Act, 83, 48 Stat. 1189 (1984) (prior to

Amendments of 1966, 80 Stat. 208 (1966)) j

8153. National Railroad Adjustment Board.

First. Establishment; composition; powers. and n

divisions; hearings and awards. ‚ ä

There is established a Board, to be known as the “National

- Railroad Adjustment Board”, the members of which shall be

selected within thirty days after June 21, 1934, and it is pro-

vided— | :

(a) That the said Adjustment Board shall consist of

thirty-six members, eighteen. of whom shall be selected by

the carriers and eighteen by such labor organizations of the

employees, national in scope, as have been or may be organ-

ized in ne with the provisions of section 152 of this

title. ;

(b). The carriers, ses each through its board of direc-

tors or its receiver or receivers, trustee or trustees, or

through an officer or officers designated for that purpose by

such board, trustee or trustees, or receiver or receivers, shall

RK prescribe the rules under which its representatives shall be

Selected and shall select the representatives of the carriers on

the Adjustment Board and designate the division on which

each such representative shall serve, but no carrier or system:

of carriers shall have more than one representative on a any

division of, the Board.

graph (a) of this section , acting each through.the chief execu-

tive or other medium designated by the organization or asso-

ciation thereof, shall prescribe the rules under which the la-

bor members of the Adjustment Board shall be selected and

shall select such members and designate the division on

which each member shall ser ye; but no labor organization

shall have more than one representative on * division 2

the Board. 3

*’ 44), | In case of a ‘permanent or We vacancy on the

Adjustment Board, the: vacancy shall be filled by selection in

the same manner as in the original selection.

(e) If either the carriers or the labor. organizations of

the employees fail to select and designate representatives to

the Adjustment Board, as provided in paragraphs (b) and

21, 1934, in case of any original appointment to office of a

_ member of the Adjustment Board, or in case of a vacancy in

any such office within thirty days after such vacancy occurs,

the Mediation Board shall thereupon directly make the ap-

pointment and shall select an individual associated in inter-

est with the carriers or the group of labor organizations of

employees, whichever he is to represent.

(t) In the event a dispute arises as to the right of any

national labor organization to participate as per paragraph

(e) or this section in the selection and designation of the

labor members of the Adjustment Board, the Secretary of

Labor shall investigate the claim of such labor organization

to participate, and if such claim in the judgment of the Sec -

retary of Labor has merit, the Secretary shall notify the

Mediation Board accordingly, and within ten days after re-

ceipt of such advice the Mediation Board shall request those

national labor organizations duly qualified as per paragraph

(e) of this section. to participate in the selection and desig-

nation of the labor members of the Adjustment Board to se-

lect a representative. Such representative, together with a

representative likewise designated by the claimant, and a

| third or neutral party designated by the Mediation Board,

constituting a board of three, | shall within said days after

11 i

the a of the neutral member, investigate the

claims of the labor organization desiring participation and

decide whether or not it was. organized in accordance with:

section 152 of this title and is otherwise, properly qualified

to participate in the selection of the labor members of the

Adjustment Board, and the findings of such boards of three

shall be final and binding.

(g) Each member of the Adjustment Board shall 85 com-

N pensated by the party or parties he is to represent. Each

third or neutral party selected under the provisions of para-

graph (f) of this section shall receive from the Mediation

Board such compensation as the Mediation Board may fix,

together with his necessary traveling expenses and expenses as)

actually incurred for subsistence, or per diem allowance in

lieu thereof, subject to the provisions of law applicable there-

to, while serving as such third or-neutral party. 1

(h) The said Adjustment Board shall be composed of i:

four divisions, whose proceedings shall be independent of

one another, and the said divisions as well as the number of

their members shall be as follows:

First division: To have jurisdiction over disputes involv-

ing train- and yard-service employees of carriers; that is,

engineers, firemen, hostlers, and outside hostler helpers, con-

ductors, trainmen, and yard- service employees. This division

: shall consist of ten members, five of whom shall be selected

and designated by the carriers and five of whom shall be se-

lected and designated by the national labor 8 of

the employees. . .

Second division: To have jurisdiction over 8 in-

volving machinists, boilermakers, blacksmiths, sheet · metal

workers, electrical workers, carmen, the helpers and ap-

prentices of all the foregoing, coach cleaners, power-house

employees, and railroad- shop laborers. This division shall

consist of ten members, five of whom shall be selected by the

. .

* -

* 5 .

‘

carriers and five by the national labor organizations of the

employees.

Third division: To, ae , jurisdiction over © disputes involv-

ing station, tower, and telegraph employees, train dispatch ·

ers, maintenance-of-way men, clerical employees, freight,

handlers, express, station, and store employees, signal men, ö

sleeping car conductors, sleeping ear porters, and maids and

dining-car employees. This division shall consist of ten mem- .

bers, five of whom shall be selected by the carriers and five

by the national labor organizations of employees. | i

Fourth division: To have jurisdiction over disputes in-

volving employees of carriers directly or indirectly engaged

in transportation of passengers or property by water, and

all other employees of carriers over which jurisdiction is not

given to the first, second, and third divisions. This. division

hall consist of six members, three of whom shall be selected

by the carriers and three by the national labor — |

of the employees. a

(i) The disputes between an cutee or group of « em-

ployees and a carrier or carriers growing out of grievances

or out of the interpretation or application of agreements con-

cerning rates of pay, rules, or working conditions, including

cases pending and unadjusted on June 21, 1934, shall be

| handled in the usual manner up to and including the chief

operating officer of the carrier designated to handle such dis-

putes; 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 bearing upon the disputes. N

63 Parties may be heard either in person, tw counsel,

or by other representatives, as they may respectively elect,

and the several divisions of the Adjustment Board shall give

due notice of all hearings to the employee or employees and

the carrier or earriers involved in any disputes sybmitted to

(k) Any diyision of the Adjustment Board shall have

authority to empower two or more of its members to conduet

hearings and make findings upon disputes, when properly ~—

submitted, at any place designated by the division: Provided, .

_ however, That final awards as to any such dispute must be

made by the entire division as hereinafter provided.

(J). Upon failure of any division to agree upon an award

_ because of a deadlock or inability to secure a majority vote

of the division members, as provided in paragraph (n) of

this section, then such division shall forthwith agree upon

and select a neutral person, to be known as “referee”, to sit

— with the division as a member thereof, and make an award. ~~

Should the division fail to agree upon and seleet a referee

within ten days of the date of the deadlock or inability to

secure a majority vote, then the division, or any member

thereof, or the parties or either party to the dispute may cer-

tify that fact to the Mediation Board, which Board shall,

within ten days from the date of receiving such certificate,

select and name the referee to sit with the division as a mem

ber thereof and make an award. The Mediation Board shall

be bound by the same provisions in the appointment of these

neutral referees as are provided elsewhere in this chapter

for the appointment of arbitrators and shall fix and pay the

compensation of such referees. f

(m) The awards of. the several divisions of the Adjust-

ment Board shall be stated in writing. A copy of the awards

shall be furnished to the respective parties to the contro-

versy, and the awards shall be final and binding upon both

parties to the dispute, except insofar as they shall contain a

money award. In case a dispute arises involving an interpre

tation of the award, the division of the Board upon request

v7 .

of either are shall interpret the one in the light of the 2

. dispute. ‘3

| (n) A nasal? vote of all ae of the division of the

‘Adjustifient Board shall be .competent to make an award

with respect to any dispute submitted to *

(0) In case of an award by any division of the Adjust-

ment Board in favor of petitioner, the division of. the Board

shall make an order, directed to the carrier, to make the

award effective and, if the award includes a requirement for

the payment of money, to pay to the employee the sum to

which he is entitled under the award on or before a day

named. . | 3 —

p) If a carrier 1 not comply with an Der of a divi-

sion of the Adjustment Board within the time limit in such

Fat order, the petitioner, or any person for whose benefit such

order was made, may file in the District Court of the United

States for the district in which he resides or in which is lo-

‘cated the principal operating office of the carrier, or through

vos the carrier operates, a a petition setting forth briefly ned

sion of the Adjustment Board in ‘the premises. Such suit in I

the District Court of the United States shall proceed in all

respects as other civil suits, except that on the trial of such |

a3 suit the findings and order of the division of the Adjustment.

Board shall be prima facie evidence of the facts therein

_ stated, and except that the petitioner shall not be liable for |

eosts in the district court nor for costs at any subsequent

stage of the proceedings, unless they accrue upon his appeal,

and such costs shall be paid out of the. appropriation for the

expenses of the courts of the United States. If the petitioner

shall finally prevail he shall be allowed a reasonable attor-

n s fee, to be taxed and collected as @ part of the costs of

the suit. The district courts are empowered, —" the rules

. r

of the court governing actions at law, to make such order

and enter such judgment, by writ of mandamus or otherwise,

as may ‘be appropriate to enforce or set aside the order of the

division of the Adjustment Board.

(q) All actions at law based upon the provisions of this .

section shall be begun within two years from the time the .

cause of action accrues under the award of the 2 of

the Adjustment Board, and not after.

(r) The several divisions of the Adjustment Board shall

maintain headquarters in Chicago, Illinois, meet regularly,

and continue in session 80 long as there is pending before the

division any matter within its jurisdiction which has béen

submitted for its consideration and bison has not been dis-

posed of. 3 2 * é

(s) Whenever practicable, the several divisions or sub-

een of the Ae nn — be. supplied with

—

(t) The Adjustment Board may, subject to the approval

of the Mediation Board, employ and fix the compensations

of such assistants as it deems necessary in carrying on its

N proceedings. The compensation of such employees shall de

paid by the Mediation Board. Ae

(u) The Adjustment Board shall meet within forty days

8 June 21, 1934, and adopt such rules as it deems neces-

sary to control proceedings before the respective divisions |

and not in ¢onflict with the provisions of this section. Im-

mediately following the meeting of the entire Board and the ;

adoption of such rules, the respective divisions shall meet

and organize by the selection of a chairman, a vice chairman, ;

and a secretary. Thereafter each division shall annually ;

designate oné of its members to act as chairman and one N

its members to act as vice chairman Provided, however,

That the 2 and . of any divi-

‘sion shall alternate as between the groups, 80 that both the

chairmanship and vice-thairmanship shall be held alternate-

ly by a representative « of the carriers and a. representative of

the employees. In case of a vacancy, such vacancy shall be

filled’ for the unexpired term by the selection of a. successor

| from the same group. |

(v) Each division of the Adjustment Board shall annual-

ly prepare and submit a report of its activities to the Media-

tion Board, and the substance of such report. shall be in-

cluded in the annual report of the Mediation Board. to the

Congress: of the United States. The reports of each division

of the Adjustment Board and the annual report of the Media-

tion Board shall state in detail all cases heard, all actions

taken, the names, salaries, and duties of all agencies, em-

ployees, and officers receiving compensation from the United

States under the authority of this chapter, and an account of .

all moneys appropriated by Congress pursuant to the author-

ity conferred by this chapter and disbursed by such agencies,

employees, and officers.

(w) Any division of the Adjustment Board shall have

authority, in its discretion, to establish regional adjustment

boards to act in its place and stead for such limited period

a8 such division may determine to be necessary. Carrier

members of such regional boards shall be designated in keep-

ing with rules devised for this purpose by the carrier mem-

bers of the Adjustment Board and the labor members shall

be designated in keeping with rules devised for this purpose

by the labor members of the Adjustment Board. Any such

~ regional board shall, during the time for which it is ap-

pointed, have the same authority to conduct hearings, make

findings upon disputes and adopt the same procedure as the

division of the Adjustment Board appointing it, and its de

cisions shall be enforceable to the same extent and under

Jul

x et * ,

the same processes. A neutral person, as iii shall be 7

appointed for service in connection with any such regional

| adjustment board in the same circumstances and manner as

provided in paragraph (J) of this section, with een to a

division of the Adjustment Board.

Second. Establishment of system, group, or regional boards

by voluntary agreement.

Nothing in this section shall be constiued to prevent any

individual carrier, system, or group of carriers and any clase

or classes of its or their employees, all acting through their

representatives, selected in accordance with the provisions of -

this chapter, from mutually agreeing to the establishment of

system, group, or regional boards of adjustment for the pur-

pose of adjusting and deciding disputes of the character

specified in this section. In the event that either party to

such a system, group, or regional board of adjustment is dis-

satisfied with such arrangement, it may upon ninety days’

notice to the other party elect to come under the Serene

of the Adjustment Board. .

Railway Labor Act, $3, 48 est 1190 (1984), as amended

45 U.S. C. A. 8158 (1966)

8133. National Railroad Adjustment Board — Establiah-

ment; composition; powers and duties; divisions; hear.

‘ings and awards ; judicial review. l

First. There is established a Board, to be known as the

“National Railroad Adjustment Board”, the members of .

which shall be selected within W days after June 21,

OM, and it is provided— ~

( ade: ‘The awards of the several divisions of the Adjust-

ment Board shall be stated in ae A copy of the award

—

- g : “

shall be furnished to the respective parties to the contro-

vérsy, and the awards shall be final and binding upon both

parties to the dispute. In case a dispute arises involving an

interpretation of the award, the division of the Board upon

request of either party shall interpret the award i in the Tight

of the 2 ;

* so) of * *

(0) In case of an 1 award by any division of the Adjust-

ö ment Board in favor of petitioner, the division of the Board

shall make an order, directed to the carrier, to make the

award effective and, if the award includes a requirement for

the payment of money, to pay to the employee the sum to

which he is entitled under the award on or before a day

named. In the event any division determines that an award

favorable to the petitioner should not be made in any dispute

5 referred to it, the division shall make an order to the *

tioner stating such determination. . N

(p) If a carrier does not comply with an order of a divi-

sion of the Adjustment Board within the time limit in such

order, the petitioner, or any person for whose benefit such

order was made, may file in the District Court of the United

States for the district in which he resides or in which is lo-

cated the principal operating office of the carrier, or through

which the carrier operates, a ‘petition setting forth briefly :

the causes for which he ¢laims relief, and the order of the

division of the Adjustment Board in the premises. Such suit

in the District. Court of the United States shall proceed in

all respects as other civil suita, except that on the trial of

such suit the findings and order of the division of the Adjust-

ment Board shall be conclusive on the parties, and except

that the petitioner shall not be liable for costs in the distriet

court nor for costs at any subsequent stage of the proceed - 1

_ings, unless they accrue upon his appeal, and such costs shall

be we out of the. epproptiation for the expenses of the

\ é ; a . i

/ ’ . . .

Jo 22 — — ee

7 . * *

courts of the United States. If the petitioner shall finally

prevail he shall be allowed a reasonable attorney’s fee, to be

taxed and collected as a part of the costs of the suit. The

district courts are empowered, under the rules of the court

governing actions at law, to make such order and enter such

judgment, by writ of mandamus or otherwise, as may be ap-

propriate to enforce or set aside the order of the division of

the Adjustment Board: Provided, however, That such der

may not be set aside except for failure of the division to com

ply with the requirements of this chapter, for failure of thé

order: to conform, or confine itself, to matters within the

scope of the division’s jurisdiction, or for fraud or corrup-

tion by a member of the division making the order.

(q If any employee or group of employees, or any car-

Tier, i is aggrieved by the failure of any division of the Adjust

ment Board to make an award in a dispute referred to it, or

is aggrieved by any of the terms of an award or by the fail-

ure of the division to include certain terms i in such award, ;

then such employee or group of. employees or carrier max

file in any United States district. court in which a petition

under paragraph (p) could be filed, a petition. for review of

the division’s order. A copy of the petition shall be forth-

with transmitted by the clerk of the court to the Adjustment

Board. The Adjustment Board shall file i in the court the rec-

ord of the proceedings on which it based its action. The court

_ shall have jurisdiction to affirm the order of the division or

to set it aside, in whole or in part, or it may remand the. pro-

ceeding to the division for such further action as it may di-

rect. On such review, the findings and order of the. division

shall be conclusive on the parties, except that the order of

the division may be set aside, in whole or in part, or re-

manded to the division, for failure of the division to comply

with the requirements of this chapter, for failure of the or-

dw to conform, or confine ‘iteelf, to matters within the *

60 ; 5 5 f a N

of the division’s jurisdiction, or for fraud or corruption by a

member of the division making the order. The judgment of

the court shall be subject to review as provided in sections

os 1291 and 1254 of Title 28. |

(r) All actions at law based upon the | provisions of this

section shall be begun within two years from the time the

cause of action accrues under the award of the division of

the Adjustment Board, and not after. |

Is) The several divisions of the Adjustment Board shall

maintain headquarters in Chicago, "Illinois, meet regularly,

and continue in session so long as there is pending before the

division any matter within its jurisdiction which has been

submitted for its consideration and which has not been dis-

posed of.

(t) Whenever practicable, the several divisions or sub-

divisions of the Adjustment Board shall be supplied with

suitable quarters in vend Federal building located at its place

of meeting.

(u) The Adjustment Board may, subject to the approval

of the Mediation Board, employ and fix the compensations of

such assistants as it deems necessary in carrying on its pro-

_ ceedings. The compensation of such employees shall be 88

by the Mediation Board. .

(v) The Adjustment Board shall meet within forty days

after June 21, 1934, and adopt such rules as it deems neces-

sary to control proceedings before the respective divisions

and not in conflict with the provisions of this section. Im-

mediately following the meeting of the entire Board and the

adoption of such rules, the respective divisions shall meet

and organize by the selection of a chairman, a vice-chairman, :

and a secretary. Thereafter each division shall annually

designate one of its members to act as chairman and one of

its members to act as vice chairman: Provided, however,

That the chairmanship and vice-chairmanship of ‘any divi-

Sion shall alternate as between the groups, so that both the

chairmanship and vice-chairmanship shall be held alternate -

ly-by a representative of the carriers and a representative of

the employees. In case of a vacancy, such vacancy shall be

filled for the unexpired term by the selection of a successor —

from the same group. |

(w) Each division of the Adjustment Board shall an-

nually prepare and submit a report of its activities to the

Mediation Board, and the substance of such report shall be

ineluded in the annual report of the Mediation Board to the

Congress of the United States. The reports of each division

of the Adjustment Board and the annual report of the Media-

tion Board shall state in detail all cases heard, all actions

taken, the names, salaries, and duties of all agencies, em-

ployees, and officers receiving compensation from the United

States under the authority of this chapter, and an account

of all moneys appropriated by Congress pursuant to the

authority conferred by this chapter and disbursed by such

agencies, employees, and officers.

(x) Any division of the Adjustment Board shall have

authority, in its discretion, to establish regional adjustment

boards to act in its place and stead for such limited period

as such division may determine to be necessary. Carrier

members of such regional boards shall be designated in keep-

ing with rules devised for this purpose by the carrier mem-

bers of the Adjustment Board and the labor members shall

de designated in keeping with rules devised for this purpose

by the labor members of the Adjustment Board. Any such

regional board shall, during the time for which it is ap-

pointed, have the same authority to conduct hearings, make

findings upon disputes and adopt the same procedure as the

division of the Adjustment Board appointing it, and its deci-

sions shall be enforceable to, the same extent and under the

PE LER Om RON

0 * f N 7 °

ag \

+ *

game processes. A neutral person, as referee, shall be ap-

pointed for service in connection with any such regional ad-

justment board in the same circumstances and manner as

provided in paragraph (I) of this section, with respect to a

division of the Adjustment Board.

System, group, or regional side: establishment by volun-

tary agreement ; special adjustment boards: establish-

ment, composition, designation of representatives by Medi-

ation Board, neutral member, compensation, quorum, final-

ity and enforcement of awards.

Second. Nothing in this section shall be construed to pre-

| vent any individual carrier, system, or group of carriers and

any class or classes of its or their employees, all acting

through their representatives, selected in accordance with

the provisions of this chapter, from mutually agreeing to the

establishment of system, group, or regianal boards of ad- ;

justment for the purpose of adjusting and deciding disputes .

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 un-

der the jurisdiction of the Adjustment Board.

If written request is made upon any individual carrier by

the representative of any craft or class of employees of such

carrier for the establishment of a special board of adjustment

to resolve disputes otherwise referable to the Adjustment

Board, or any dispute which has been pending before the Ad-

justment Board for twelve months from the date the dispute

(claim) is received by the Board, or if any carrier makes

such a request upon any such representative, the carrier or

the representative upon whom such request is made shall

Join in an agreement establishing such a board within thirty

days from the date such request is made. The cases which

a Ni a i r-•ẽͥẽ Yee eee eee

—

may be considered by such board shall be defined in the agree -

ment establishing it. Such board Shall consist of one person

designated by the carrier and one person designated by the

representative of the employees. If such carrier or such rep-

resentative fails to agree upon the establishment of such a

board as provided herein, or to exercise its ‘Tights to desig-

nate a member of the board, the carrier or representative

making the request for the establishment of the special board

may request the Mediation Board to designate a member of

the special board on behalf of the carrier or representative

upon whom such request was made. Upon receipt of a re-

. quest for such designation the Mediation Board shall prompt-

ly make such designation and shall select an individual asso-

ciated in interest with the carrier or representative he is to

represent, who, with the member appointed by the carrier or

reprèsentative requesting the establishment of the special

board, shall constitute the board. Each member of the board

shall be compensated by the party he is to represent. The

members of the board 80 designated shall determine all mat-

ters not previously agreed upon by the carrier and the repre-

sentative of the employees with respect to the establishment

and jurisdiction of the board. If they are unable to agree such

matters shall be determined by a neutral member of the board

selected or appointed and compensated in the same manner

as is hereinafter provided with, respect to situations where

board when he has determined such matters. If with respect

to any dispute or group of disputes the members of the board

designated by the carrier and the representative are unable

to agree upon an award disposing of the dispute or group of

disputes they shall by mutual agreement select-a neutral per-

son tobe a member of the board for the consideration and

disposition of such dispute or group of disputes. In the event

the members of the board designated by the parties are un-

able, within fen days after their failure to agree upon an

award, to agree upon the selection of such neutral person,

either member of the board may request the Mediation Board

to appoint such neutral person and upon receipt of such re-

quest the Mediation Board shall promptly make such ap-

pointment. The neutral person 80 selected or appointed shall

de compensated and reimbursed for expenses by the Media-

tion Board. Any two members of the board shall be compe-

tent to render an award. Such awards shall be final and

binding upon both parties to the dispute and if in favor of

the petitioner, shall direct the other party to comply there

with on or before the day named. Compliance with such

awards shall be enforcible by proceedings in the United

States district courts in the same manner and subject to the

same provisions that apply to proceedings for enforcement

of compliance with awards of the Adjustment Board. As

amended June 20, 1966. Pub. L. 89—456, 88 1, 2, 80 Stat.

= Bo

- Railway Labor Act, 87, 44 Stat. 582 (1926), as amended

45 U.S.C. $157 (1964)

3 5157. Arbitration.

First. Submission of nn to arbitration. ‘

Whenever a controversy shall arise between a carrier or

carriers and its or their employees which is not settled either :

in conference between representatives of the parties or by the

appropriate adjustment board or through mediation, in the

manner provided in- sections 151-156 of this title such con-

troversy may, by agreement of the parties to such contro-

versy, be submitted to the arbitration of a board of three (or,

if the parties to the controversy 80 stipulate, of six) persons:

n: 2 5 49

Provided, however, That the failure or refusal of either party

to submit a controversy to arbitration shall not be construed

as a violation of any legal obligation imposed upon such

party by the terms of this chapter or otherwise.

Second. Manner of selecting board of arbitration.

Such board of arbitration shall be chosen in the following :

‘manner: |

(a) In the case of a board of three the carrier or carriers

and the representatives of the employees, parties respective.

ly to the agreement to arbitrate, shall each name one arbi- :

trator; the two arbitrators thus chosen shall select a third

arbitrator. If the arbitrators chosen by the parties shall fail

to name the third arbitrator within five days after their first

meeting, such third arbitrator shall be named by the Media-

| tion Board | ies Sas dive

(b) In the case of a board of six the carrier or carriers

and the representatives of the employees, parties respectively - .

to the agreement to arbitrate, shall each name two arbitra -

tors; the four arbitrators thus chosen shall, by a majority

vote, select the remaining two arbitrators. If the arbitrators

chosen by the parties shall fail to name the two arbitrators

within fifteen days after their first meeting, the said two ar-

bitrators, or as many of them as have not been named, shall

be named by the Mediation Board.

Third. Board of arbitration; organization ; compensation ;

procedure.

(a) Notice of selection or failure to select arbitrators.

When the arbitrators selected by the respective parties

have agreed upon the remaining arbitrator or arbitrators,

they shall notify the Mediation Board; and, in the event of

their failure to agree upon any or upon all of the necessary

arbitrators within the . fixed by this chapter, they shall,

at the expiration of such period, notify the Mediation Board

of the arbitrators selected, if any, or of their ne? te make oF

or to complete such selection. A N N

(b) Organization of board; ——

The board of arbitration shall organize and select 118 0 own

chairman and make all necessary rules for conducting its

hearings; Provided, however, That the board of arbitration -

shall be bound to give the parties to the controversy a full

and fair hearing, which shall include an opportunity to pre-

sent evidence in support of their claims, and an opportunity

to present their case in person, by counsel, or by. other repre-

- sentative as they may respectively elect.

ej Duty to reconvene; questions considered.

Upon notice from the Mediation Board that the parties,

or either party, to an arbitration desire the reconvening of

the board of arbitration (or a subcommittee of such board

of arbitration appointed for such purpose pursuant to the

agreement to arbitrate) to pass upon any controversy over

the meaning or application of their award, the board, or its

subcommittee, shall at once reconvene. No question other

than, or in addition to, the questions relating to the meaning

or ‘application of the award, submitted by the party or par-

ties in writing, shall be considered by the reconvened board

of arbitration or its subcommittee.

Such rulings shall be acknowledged by such board or sub-

committee thereof in the same manner, and filed in the same

district court clerk’s office, as the original award and become

a part thereof.

(d) Competeney of arbitrators.

No arbitrator, except those chosen by the Mediation Board,

shall be incompetent to act as an arbitrator because of his

— —— — * 3 * Seen

—

‘ . 2 a

interest in the controve! arbitrated, or 5 of his

_ connection with or partiality to either of the parties to the ar-

— bitration.

(e) Compensation and expenses.

Each member of any board of arbitration created under

the provisions of this chapter named by either party to the

arbitration shall be compensated by the party naming him.

Each arbitrator selected by the arbitrators or named by the

Mediation Board shall receive from the Mediation Board

such compensation as the Mediation Board may fix, together

with his necessary traveling expenses and expenses actually

incurred for subsistence, while serving as an arbitrator.

(f) Award; disposition of original and copies, :

The board of arbitration shall furnish a certified copy of .

its award to the- respective parties to the controversy, and

shall transmit the original, together with the papers and

proceedings and a transcript of the evidence taken at the

hearings, certified under the hands of at least a majority of

the arbitrators, to the clerk of the district court of the United

States for the district wherein’ the controversy arose or the

arbitration is entered into, to be filed in said clerk’s office as

„ hereinafter provided. The said board shall also furnish a

certified copy of its award, ahd the papers and proceedings,

including testimony relating. thereto, to the Mediation Board

to be filed in its office; and in addition a certified copy of

its award shall be filed in the office of the Interstate Com-

merce Commission: Provided, however, That such award

Shall not be construed to diminish or extinguish any of the

powers or duties of the Interstate Commerce Commission,

under the Interstate B Act, as amended. ;

e LOT RENO Pe RANG LNT REE OO EGET

(g) Compensation of assistants to board of arbitration ; ex-

penses; quarters. a ee

A board of arbitration may, atten to the approval of the

Mediation Board, employ and fix the compensation of such

' assistants as it deems necessary in carrying on the arbitra-

tion proceedings. The compensation of such employees, to-

. gether with their netessary traveling expenses and expenses

actually incurred for subsistence, while so employed, and the

necessary expenses of boards of arbitration, shall be paid by

‘the Mediation Board: °°

Whenever practicable, the board shall 5 8 with

suitable quarters in any Federal building located at its place

of meeting or at any place where the board may conduct its

proceedings or deliberations. es

(h) 2 before board; oaths; ‘attendance of witnese- |

; production. of documents; subpoenas ; compulsion

2 ‘witnessed fees, :

All testimony before said board shall be n under oath

or affirmation, and any member of the board shall have the

power to administer oaths or affirmations. The board of

arbitration, or any member thereof, shall have the power to

require the attendance of witnesses and the production of

such books, papers, contracts, agreements, and documents

as may be deemed by the board ‘of arbitration material to a

just determination of the matters submitted to its arbitra-

tion, and may for that purpose request the clerk of the dis-

trict court of the United States for the district wherein said

arbitration is being conducted to issue the necessary sub-

poenas, and upon such request the said clerk or his duly

authorized deputy shall be, and he is, authorized, and it shall

be his duty, to issue such subpoenas. In the event of the\

failure of any person to comply with any such subpoena, or

in the event of the oer of any witness appearing be-

fore the board of arbitration, the board may invoke the

ot the United States courts to compel witnesses to attend

and testify and to produce such books, papers, contracts,

agreements, and documents to the same extent and under

the same conditions and penalties as provided for in the In.

terstate Commerce Act as amended. _ :

Any witness appearing before a board of arbitration shall

receive the same fees and mileage as witnesses in courts of

he United States, to be paid by the party securing the sub-

poena.

Railway Labor Act, 88, 44 Stat. 584 (1926), as amended

> 45. U.S.C. $158 (1964) |

8158. Agreement to arbitrate; form and contents; signa-

tures and acknowledgment; revocation.

The agreement to arbitrate— .

(a) Shall be in writing;

provisions of this chapter;

(b) Shall stipulate that the arbitration is had under the

(e) “Shall state whether the board of arbitration ia to con-

sist of three or of six members; 5

(4) Shall be signed by the duly accredited representa-

tives of the carrier or. carriers-and the employees, parties re-

spectively to the agreement to arbitrate, and shall be ‘ac.

knowledged by said parties before a notary publit, the clerk

of a district court or court of appeals of the United States,

or before a member of the Mediation Board, and, when so

acknowledged, shall be filed in the office of the Mediation

Board; N Fs ) |

(e) Shall A specifically the questions to be submitted

to the said board for decision; and that, in its award or

snake ata etn bd)

— ee

70 |

awards, the said board shall confine itself strictly to deci-

ä sions as to the questions so specifically submitted to it;

Ja (f) Shall provide that the questions, or any one or more

bot them, submitted by the parties to the board of arbitration

may be withdrawn from arbitration on notice to that effect

signed by the duly accredited representatives of all the par-

ties and served on the board of arbitration ; |

(g): Shall stipulate that the signatures of a majority of

said board of arbitration affixed to their awartl shall de e com-

petent to constitute a valid and binding award; f i

(h) Shall fix a period from the date of the appointment

of the arbitrator or arbitrators necessary to complete the

board (as provided for in the agreement) within which the

said board shall commence its hearings; .

(i) Shall fix a period from the beginning of the hear-

ings within which the said board shall make and file its

award: Provided, That the parties may agree at any time :

upon an extension of this period ; ;

3) shall provide for the date from which the int

shall become effective and shall fix the period during which

the award shall continue in force ; :

tration and the evidence of the proceedings before the board

relating thereto, when certified under the hands of at least a

niajority of the arbitrators, shall be filed in the clerk’s office

of the. district court of the United States for the district

wherein the controversy arose or the arbitration was entered

into, which district shall be designated in the agreement;

and, when so filed, such award and proceedings shall consti-

tute the full and complete record of the arbitration ; |

(1) Shall provide that the award, when 80 filed, shall be

final and conclusive upon the parties as to the facts deter-

mined aby said award and as to the merits of the controvery

decided;

(m) Shall provide that any difference . as to the

meaning, or the application of the provisions, of an award

made by a board of arbitration shall be referred back for a

ruling to the same board, or, by agreement, to a subeommit-

tee of such board; and that such ruling, when acknowledged

in the same manner; and filed in the same district court

elerk's office, as the original award, shall be a part of and

shall have the same force. and effect as such 3 award;

and

( n) Shall provide that the respective parties to the award

will each faithfully execute the same.

The said agreement to arbitrate, when properly dana and

acknowledged as herein provided, shall not be revoked by a

party to such agreement: Provided, however, That such

agreement to arbitrate may at any time be revoked and can- .

celed by tle written agreement of both parties, signed by

their duly accredited representatives, and (if no board of.

arbitration has yet been constituted under the agreement)

delivered to the Mediation Board or any member thereof;

or, if the board of arbitration has been constituted as pro-

, vided by this chapter, b to such board of arbitration.

Railway Labor het, 89, 44 Stat. 585 (1928), as amended

45 U. S.C. $159 (1964) ä j

§159. Award and judgment thereon; effect of chapter o on

individual employee.

First. Filing of award.

The award of a board of arbitration, having been acknowl-

! edged as herein provided, shall be filed in the clerk’s office

of the district court designated in the agreement to arbitrate.

‘Second. Conclusiveness of award; judgment.

An award acknowledged and filed as herein provided shall

be conclusive on the parties as to the merits and facts of the

controversy submitted to arbitration, and unless, within ten

days after the filing of the award, a petition to impeach the

award, on the grounds hereinafter set forth, shall be filed

in the clerk’s office of the court in which the award has-been

filed, the court shall enter judgment on the award, which

judgment shall be final and conclusive on the parties. .

Third. Impeachment of award; grounds.

Such petition. for the impeachment or contesting of any

award so filed shall be entertained by the court rand on one or

more of the following grounds: :

(a) That the award plainly does not conform to the sub-

-stantive requirements laid down by this chapter for such

awards, or that the proceedings were not me in

conformity with this chapter;

(b) That the award does not conform, nor . itself,

to the stipulations of the agreement to arbitrate; or

(e) That a member of the board of arbitration rendering

the award was guilty of fraud or corruption; or that a party

to the arbitration practiced fraud or corruption which fraud

or corruption affected the result of the arbitration: Pro-

vided, however, That no court shall entertain any such peti-

tion on the ground that an award is invalid for uncertainty ;

in such case the proper remedy shall be a submission of such

award to a reconvened board, or subcommittee thereof, for

interpretation, as provided by this chapter: Provided, fur-

ther, That an award contested as herein provided shall be

construed liberally by the court, with a view to favoring its

validity, and that. no award shall be set aside for trivial ir-

regularity or clerical error, going only to form and not to

substance.

Fourth. Effect of partial invalidity of .

= the court shall determine that a part of the award is in-

valid on some ground or grounds designated in this section

as a ground of invalidity, but shall determine that a part of

the award is valid, the court shall set aside the entire award:

Provided, however, That, if the parties shall agree thereto,

and if such valid and invalid parts are separable, the court

shall set aside the invalid part, and order . to stand

as to the valid part.

Fifth. Appeal; record.

At the expiration of 10 days from the decision of the dis-

triet eourt upon the petition filed as aforesaid, final judgment

shall be entered in accordance with said decision, unless dur-

ing said 10 days either party shall appeal therefrom to the

court of appeals. In such case only such portion of the rec-

ord shall be transmitted to the appellate court as is necessary

to. the proper understanding and consideration of the ques-

tions of law presented by said petition and to be decided.

Sixth. Finality of decision of court of appeals.

The determination of said court of appeals upon said ques-

tions shall be final, and, being certified by the clerk thereof

to said district court, judgment pursuant thereto shall there

upon be entered by said district court. /

Seventh. Judgment where petitioner’s contentions are sus

* tained.

If the petitioner's contentions are finally sustained fit

ment shall be entered setting aside the award in whole or,

if the parties so agree, in part; but in such case the parties

may agree upon a judgment to be entered disposing of the

subject matter of the controversy, which judgment when en-

a f es eT

mmm . ñĩxtñw T—ͤ—⅛— ——U— —

= Vi

tered shall have the same force and effect. as judgment en-

_. tered upon an award. . e

Eighth. Duty of employee to render service without consent;

right to quit.

Nothing in this chapter shall be construed to require an

individual employee to render labor or service without his

consent, nor shall anything in this chapter be construed to

make the quitting of his labor or service by an individual

employee an illegal act; nor shall any court issue any proc-

ess to compel the performance by an individual employee of

such labor or service, without his consent.

Railway Labor Act, 8201; 49 Stat. 1189 (1936)

CARRIERS BY ATR

§181. Application of sections 151, 152, and 154-163 to car- .

riers by air, a .

All of the provisions of sections 151, 152, and 154-163 of

this title are extended to and shall cover every common car-

rier by air engaged in interstate or foreign commerce, and

every carrier by air transporting mail for or under contract

with the United States Government, and erery air pilot or

other person who performs any work as an employee or sub-

ordinate official of such carrier or carriers, subject to its or

their continuing authority to supervise and direct the man-

ner of rendition of his service.

Railway Labor Act, 6204, 49 Stat. 1189 (1936).

5184. System, group, * regional boards of adjustment.

The disputes between an employee or group of employees

and a carrier or carriers by air growing out of grievances,

or out of the interpretation or application of agreements con-

cerning rates of pay, rules, or working conditions, including.

cases pending and unadjusted on April 10, 1936, before the

National Labor Relations Board, shall be handled in the

usual manner up to and including the chief operating officer

of the carrier designated to handle such disputes; but, fail-

ing 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, as hereinafter provided, with

a full statement of the facts and W data e

upon the disputes.

It shall be the duty of every carrier and of its employer,

acting through their representatives, selected in accordance

with the provisions of ‘sections 181-188 of this title, to estab-

lish a board of adjustment of jurisdiction not exceeding the

jurisdiction which may be lawfully exercised by system,

group, or regional boards of adjustment, under the authority

of section 153 of this title.

Such boards of adjustment may be established by agree-

ment between employees and carriers either on any individ-

ual carrier, or system, or group of carriers by air and any

elass or classes of its or their employees; or pending the

establishment of a permanent National Board of Adjustment

as hereinafter provided. Nothing in sections 151-163 and

181-188 of this title shall prevent said carriers by air, or any

class or classes of their employees, both acting through their

representatives selected in accordance with provisions of

sections 181-188 of this title, from mutually agreeing to the

establishment of a National Board of Adjustment of tempo-

rary duration and of similarly limited jurisdiction. ° he

Railway Labor Act, 8205, 49 Stat. 1190 (1936)

3185. National Air Transport Adjustment Board.

When, in the judgment of the National Mediation Board,

it shall be necessary to have a permanent national board of

adjustment in order to provide for the prompt and orderly

settlement of disputes between said carriers by air, or any

of them, and its or their employees, growing out of grievances

or out of the interpretation or application of agreements be-

tween said carriers by nir or any of them, and any elass or

elasses of its or their employees, covering rates of pay, rules,

or working conditions, the National Mediation Board is em-

powered and directed, by its order duly made, published, and

served, to direct the said carriers by air and such labor or-

ganizations: of their employees, national in scope, as have

been or may be recognized in accordance with the provisions

of sections 151-163 and “181-188 of this title, to select and

designate four representatives who shall constitute a board

which shall be known as the “National Air Transport Ad-

justment Board.” Two members of said National Air Trans-

port Adjustment Board shall be selected by said carriers by.

air and two members by the said labor organizations of the

employees, within thirty days after the date of the order of.

the National Mediation Board, in the manner and by the pro-

cedure prescribed by section 153 of this title for the sélec-

tion and designation of members of the National Railroad

‘Adjustment Board. The National Air Transport Adjust-

ment Board shall meet within forty days after the date or

‘the order of the National Mediation Board directing the

selection and designation of its members and shall organize

and adopt rules for conducting its proceedings, in the man-

ner prescribed in section 153 of this title. Vacaricies in mem-

bership or office shall be filled, members shall be appointed

in case of failure of the carriers or of labor — of

~~,

the employees to select and designate representatives, mem

bers of the National Air Transport Adjustment Board shall

be compensated, hearings shall be held, findings and awards

made, stated, served, and enforced, and the number and com-

pensation of any necessary assistants shall be determined and

the compensation of such employees shall be paid, all in the

same manner and to the same extent as provided with refer-

ence to the National Railroad Adjustment Board by section

153 of this title. The powers and duties prescribed and estab-

. , lished by the provisions of section 153 of this title with ref-

erence to the National Railroad Adjustment Board and the

several divisions theréof are conferred upon and shall be

exercised and performed in like manner and to the same ex-

tent by the said-National Air Transport Adjustment Board,

not exceeding, however, the jurisdiction conferred upon said

National Air Transport Adjustment Board by the provisions

of sections 181-188 of this title. From and after the organ-

ization of the National Air Transport Adjustment Board, if

any system, group, or regional board of adjustment estab-

‘ lished by any carrier or carriers by air and any class or

classes of its or their employees is not satisfactory to either

party thereto, the said party, upon ninety days’ notice to the

other party, may elect to come under the jurisdiction of the

National Air Transport Adjustment Board. ö

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.