# Petition for Writ of Certiorari — Northwest Airlines, Inc. v. Air Line Pilots Ass'n > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0590%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1967 - **Citation:** 389 U.S. 827 ## Text "“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 — ———— ——————————EæEiñ . ————— — 1967—Northwest Brief Printing Co., 322 $. Fourth St., Minneapolis 88418 Ph. 338-6078 * 0 . : 5 8 2 8 — - . . . 7 —— wae = . + „ 3 a * 9 f . “y m . * 8 . * . ‘ 2 as > ° “ . “re — sa 5 8 — 2 . 2 > * . * . . * . A 5 . . . * ©. . — * ' . . — . 0 * ” — — = 3 we * . . — 9 5 . 7 . —ꝛ— — — — * te “ 1 2 — — — — — — — — — —— — ‘ -= f ö i 5 pe ee, INDEX f n . ! | N wl OPINIONS BR OW... .. -estte-besu e 8 „„ ‚ „ „„ vescisinrreinheserivniiocnsiiliiisesbiiinitamigine cae CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED.. . ̃— I em a GS 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 6»·⁊:!k . —-— . C1. ̃ ͤ —— 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 : fn)... ⅛•ÄÄàꝛꝛwꝛwVꝛA al omen %%%%%PTTPVVT——T—T—TVSVVVVTVV sui testis 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 \ — — — \ \- e v . i * — — — ——— — > * — e 9 ae . . N 7 * 0 > . . \ . \ 2 ’ ; N 1 — 1 * a . „ > 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 3 — J * 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 - 5 1 . 5 — — apt tified to the Attorney General the fact that the constitution ality of an Act of Congress affecting the public interest was aa — 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 5 Fe 5 f 11 2 i aie HF 53° 1 f 174 2 1 8 R : . ih 3 : E 5 b. ¢ te ; 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 7 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- t 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), 10 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 5 - * 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 16 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- 17 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 , —— — 18 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 19 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 20 _ 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 « 23 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 ro 3 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. 27 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. 28 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). © „ er 29 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 32 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 . — O 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 . ‘ — — » ‘ eo 35 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.] i Before VAN OosruRHour, BLACKMUN and MEHaFFy, Circuit Judges. | Ca x 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 2 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 41 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 44 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 45 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- 46 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. 2 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 : * 8 ' * „* * * . 7 . - — . 7. 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. (c) The national labor organizations, as defined in para- 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 1 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 (c) of this section, respectively, within sixty days after June 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 oo . 4 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 ss 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 . 84 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, as * 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, 61 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_0590%3A1. Public record. Not legal advice.