Petition for Writ of Certiorari — International Ass'n of Machinists v. Brady

a ha al ta

IN THE

eee

JOHN F. DAVIS, CLERK ©

Supreme Court of the United States

Octoser Term, 1968

<>

Vincent P. Brapy,

Respondent,

—against—

Trans Wortp Arruines, Inc.,

Petitioner,

preety

Steer a verae lt lwal wire we Wann Worare Nee rvte Camere WaUS Sc soc oad

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Harotp L. Warner, JR.

25 Broadway

New York, New York 10004

Counsel for Petitioner

Cart S. Rows

Ricuarp S. Harretu

CHADBOURNE, ParkKE, WHITESIDE & WoLFF

New York, New York

Of Counsel

INDEX

Opinions Below

Jurisdiction

Questions Presented alae

Statutes Involved

Statement of the Case

Brady’s Refusal to Pay Dues

The IAM Discharge Certification

The System Board Hearings

The Holdings of the District Court

The Holding of the Court of Appeals

oo OO oO Oo

Reasons for Granting the Writ

ConcLUsION 19

TaBLE OF AUTHORITIES

Cases:

Alabaugh v. Baltimore & Ohio R.R., 222 F. 2d 861 (4th

Cir.), cert. denied, 350 U. S. 839 (1955) 10

Battle v. Brotherhood of Ry. and S.S. Clerks, 320 F.

2d 742 (D. C. Cir. 19§3) 10

Brady v. Trans World Airlines, Inc., 223 F. Supp.

361 (D. Del. 1963) 6

PAGE

Brady v. Trans World Airlines, Inc., 244 F. Supp.

820 (D. Del. 1965) 7

Cunningham v. Erie R.R., 266 F. 2d 411 (2nd Cir.

1959) 11, 12, 13

Cunningham v. Erie R.R., 358 F. 2d 640 (2nd Cir.

1966) 13

Humphrey v. Moore, 375 U. S. 335 (1964) 18

IAM v. Central Airlines, Inc., 372 U. S. 682 (1963)

5, 16, 18

Johns v. Baltimore & Ohio R.R., 118 F. Supp. 317

(N. D. Ill. 1954), aff’d per curiam, 347 U. S. 964

(1954) 10

Krambo Food Stores, Inc., 114 N. L. R. B. 241 (1955),

aff'd sub nom. NLRB v. Allied Independent Union,

238 F. 2d 120 (7th Cir. 1956) 18

Moore v. Illinois Central R.R., 312 U. S. 630 (1941) .... 15

NLBB v. Leece-Neville Co., 330 F. 2d 242 (6th Cir.),

cert. denied, 379 U. S. 819 (1964) 18

NLRB v. Pape Broadcasting Co., 217 F. 2d 197 (5th

Cir. 1954) 18

Order of Ry. Conductors v. Pitney, 326 U. S. 561

(1946) 11

Order of Ry. Conductors v. Southern Ry., 339 U. S.

255 (1950) 11

PAGE

Pigott v. Detroit, T. & I. R.R., 221 F. 2d 736 (6th Cir.

1955) 10, 12

Producers Transport, Inc. v. NLRB, 284 F. 2d 438

(7th Cir. 1960) 18

Republic Steel Corp. v. Maddox, 379 U. S. 650 (1965) 17

Rychlik v. Pennsylvania R.R., 229 F. 2d 171 (2nd Cir.

1956), rev’d on other grounds, 352 U. S. 480

(1957) 11, 12

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

11, 15, 16

Thompson v. New York Cent. R.R., 361 F. 2d 137 (2nd

Cir. 1966) 1i

Transcontinental & Western Air, Inc. v. Koppal, 345

U. S. 653 (1953) 15

United R.R. Operating Crafts v. Northern Pacific

R.R., 208 F. 2d 135 (9th Cir. 1953), cert. denied, 347

U. S. 929 (1954) 10

United R.R. Operating Crafts v. Pennsylvania B.B.,

212 F. 2d 938 (7th Cir. 1954) 10

United R.R. Operating Crafts v. Wyer, 115 F. Supp.

359 (S. D. N. Y.), aff’d, 205 F. 2d 153 (2nd Cir.

1953), cert. denied, 347 U. S. 929 (1954) ............ 10, 11

Vaca v. Sipes, 386 U. 8. 171 (1967) 18

Walker v. Southern Ry., 385 U. S. 196 (1966) ......9, 15, 16

iv

PAGE

Statutes:

Labor Management Relations Act

61 Stat. 140, as amended, 73 Stat. 535, 29 0. S. C.

§158(a)(3) ... S = 18

Railway Labor Act

44 Stat. 577, as amended, 45 U.S. C. §§15l1 et seq. 3

49 Stat. 1189, 45 U. S. C. §§181 et seq. 3

Section 2, Eleventh ............................ 17,18

Section 2, 45 U. S. C. §15la .. oa

Section 3, Second 12

eas BG Ge TS. Ge vitectsicieerens 10

Section 204, 49 Siat. 1189, 45 U. S. C. §184 ...... 5, 9, 10

1950 U. S. Code Cong. Serv. 4321 ; 18

In THE

Supreme Court of the United States

OctoseR Term, 1963

No. ---

nocn thro —

Vincent P. Brapy,

Respondent,

—against—

Trans Wortp Areunes, Inc.,

Petitioner,

and

Tur INTERNATIONAL AssociATION OF MacBrInIsts.

ef oat

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Petitioner, Trans World Airlines, Inc. (“TWA”), prays

chat a writ of certiorari issue to the United States Court

of Appeals for the Third Circuit to review its judgment in

this case.

Opinions Below

The opinion of the Court of Appeals is not reported

(Opinions 6a). Of the opinions of the District Court de-

* References te “(Opinions __.)” are to the jointly-prepared

Opinions Delivered in the Courts Below which are voluminous and

are, therefore, being separately presented.

2

termining liability and relief, the opinion of November

4, 1963 is reported at 223 F. Supp. 361 (Opinions 88a),

the opinion of September 3, 1965 is reported at 244 F.

Supp. 820 (Opinions 106a) and the opinion of September 6,

1966 is unreported (Opinions 1lla). Earlier opinions of

the District Court are reported at 156 F. Supp. 82 (Opin-

ions 43a), 167 F. Supp. 469 (Opinions 57a), 174 F. Supp.

360 (Opinions 67a) and 196 F. Supp. 504 (Opinions 81a) ;

a letter opinion dated May 3, 1962 is unreported (“pinions

87a).

Jurisdiction

The judgment of the Court of Appeals, set forth in

Appendix A, infra, was entered August 13, 1968. The

jurisdiction of this Court is invoked under 28 U. S. C.

§1254(1).

Questions Presented

1. Is a System Board of Adjustment established under

the Railway Labor Act ousted from jurisdiction over an

employee’s grievance because the grievance involves a com-

plaint of wrongful discharge pursuant to the union-security

provisions of a collective bargaining agreement?

2. May an airline employee discharged pursuant to the

union-security provisions of a collective bargaining agree-

ment authorized by the Railway Labor Act obtain rein-

statement in employment otherwise than under the ad-

ministrative procedures established by such collective bar-

gaining agreement?

3. May a federal court set aside a final and binding

decision of a Railway Labor Act System Board of Ad-

justment upholding the discharge of an airline employee

for failure to maintain membership in good standing in

his union in the absence of any finding by the court that

the System Board had denied the employee a fair hearing

or otherwise acted improperly?

4. Does an airline automatically violate the Railway

Labor Act when, pursuant to a lawful collective bargain-

ing agreement and in good faith reliance on union cer-

tification, it complies with a Railway Labor Act System

Board of Adjustment decision and discharges an employee

for failure to maintain membership in good standing in

his union if a court later determines that without the

airline’s knowledge the union had improperly rejected the

employee’s tender of his dues?

Statutes Involved

Relevant provisions of the Railway Labor Act, 44 Stat.

577, as amended, 45 U. S. C. §§151 et seg. (“the Act”), are

set forth in Appendix B, infra.

Statement of the Case

The basic facts are not in dispute. WA is an air

carrier subject to Title II of the Act, 49 Stat. 1189, 45

U. S. C. §$181 ef seg. Respondent, Vincent P. Brady

(“Brady”), was, prior to his discharge 01 May 15, 1956, a

mechanic employed by TWA at its Philaaelphia station. At

that time Brady was a shop steward and member of the

4

International Association of Machinists (“the IAM”), the

certified collective bargaining agent for TWA’s mechanics.

The collective bargaining agreement between TWA and

the IAM (“the Agreement”) contained a union-security

provision requiring that employees maintain “membership

in good standing” in the IAM by paying “dues for each

calendar month not later than the last day of the following

calendar month” (316a-317a).?

Brady’s Refusal to Pay Dues

Protesting the propriety of a 25¢ a month increase in

the IAM dues, Brady refused to pay his dues for Decem-

ber 1955 and January, February and March 1956.° As a

result the IAM advised Brady on March 13, 1956 that

he would be subject to discharge if he did not pay the

dues for these four months, totaling $13, by March 28,

1956 (306a-307a). When Brady tendered only $10.50 on

March 27, 1956, the IAM rejected the tender as insufficient

and demanded that Brady pay a reinstatement fee of $25

by April 26, 1956 (340a-341a).*

2 References to “(_..a)” are to the pages of the Joint Appendix

of TWA and IAM filed with the Court of Appeals and included

in the record certified by the clerk of that Court being filed with

this petition.

® Subsequently, Brady characterized his argument with the IAM

as follows:

“T believe you know that my argument in this case hasn’t

been the refusal to pay my dues, but what I considered to be

the proper amount due to the events leading up to the raising

the dues and actions on the lodge floor afterwards” (297a).

* TWA was not advised of Brady’s tender.

The IAM Discharge Certification

Brady ignored the IAM demand. Anticipating that he

would be certified for discharge, he appealed on April 24,

1956 to the System Board of Adjustment established by

Article XXVI of the Agreement (267a-268a).° On April

30, 1956 the IAM certified to TWA that Brady had failed

to make the necessary payment and should be discharged

in accordance with the terms of the Agreement (301a).

The System Board Hearings

A hearing on Brady’s appeal was held on May 4, 1956.

Although he had notice, Brady failed to appear (21a, 286a).

Since Brady’s appeal of April 24 antedated the IAM dis-

charge certification of April 30, the System Board con-

cluded that Brady’s appeal “was not properly before this

Board” (270a, 358a).

The Vice Chairman and Chairman of the System Board

telephoned Brady at the conclusion of the May 4 hearing

to advise him of the Board’s decision and to further advise

him that an appeal of his discharge would be heard if

Brady mailed a new appeal. This telephone conversation

was confirmed by a special delivery letter (358a).

In accordance with a request by Brady a second hearing

was held on May 14, 1956. Once again, despite notice,

Brady failed to appear (21a, 287a).

5The System Board of Adjustment was established under the

Agreement pursuant to the statutory duty under Section 204 of

the Railway Labor Act (49 Stat. 1189, 45 U. S. C. §184) “of

establishing and utilizing system, group, or regional boards of ad-

justment for the purpose of adjusting and deciding disputes aris-

ing under existing contracts.” ZAM v. Central Airlines, Inc., 372

U. S. 682, 686 (1963).

6

The full transcript of the second hearing is set forth in

the Joint Appendix of TWA and IAM below (287a-305a).

The undisputed evidence before the Board showed that

the IAM had afforded Brady repeated opportunities to

pay his union obligations but Brady had refused to make

such payment. The record included a written admissicn

by Brady that he was in default as follows:

“This is to inform you that I am willing to make

the payment of my dues, as I have demonstrated on

a number of occasions in the past. I will pay the

amount that the rest of the fellows are now paying

dating back to December to the present time” (297a).

Based upon this undisputed evidence and Brady’s ad-

mission, the System Board on May 14, 1956 held that

Brady’s discharge should be upheld (36la). Under the

Agreement the decision of the System Board was “final

and binding on all parties concerned” (320a).

The Holdings of the District Court

On April 22, 1957, Brady commenced the present action

in the United States District Court for the District of

Delaware. Jurisdiction was premised on 45 U. S. C. 181

and 152 and 28 U. S. C. 1331 and 1337. On November 4,

1963, the District Court held Brady “entitled to compen-

satory damages and reinstatement” (248a).*° No issue was

submitted by Brady at the trial and no evidence was of-

fered as to any alleged fault of TWA or as to any alleged

* Brady v. Trans World Airlines, Inc., 223 F. Supp. 361, 370

(D. Del. 1963) (Opinions 88a, 105a). The District Court made

no finding on Brady’s basic contention that his discharge “was

prompted by the Union’s hostile discrimination against him”. The

’ record would not support a finding of hostile discrimination since

only Brady refused to pay the increased dues (167a, 198a).

7

knowledge by TWA of the claimed wrongful acts of the

IAM (121a-127a; 223a-227a). |

Misreading the Agreement and the IAM Constitution,’

the District Court held that the IAM’s demand that Brady

pay four months’ dues by March 28, 1956, was excessive

since, as the Court reasoned, Brady “owed only two months

dues” (243a).

The District Court further held that Brady’s tender on

March 27, 1956 of $10.50 precluded his discharge, since

under the District Court’s reasoning only two months’ dues

totaling $6.50 was then due.

Since the Court had severed the trial of the liability

issues from the damage questions, it dealt with the ques-

tion of damages in a decision rendered September 3, 1965

(250a).°

After further hearings, the District Court on September

6, 1966, entered final judgment directing Brady’s reinstate-

ment in TWA’s employ as well as restoration of his union

membership and awarded him back pay of $10,617.80 (402a-

403a). The Court further ordered that Brady be rein-

stated in TWA’s retirement program by his contributing

“the sum which he would have contributed over the period

as well as having TWA contribute its share” (401a).

7 Under the IAM Constitution [Article E, Sec. 14 (329a)] de-

linquency for three months in the payment of dues automatically

cancels membership. No grace period is provided. Hence Brady’s

membership was automatically cancelled on March 1, 1956 when

he had failed to pay the prior three months’ cues. The District

Court would amend the IAM Constitution by adding a grace

period. While TWA is not privy to the IAM Constitution, under

either the Agreement or the,Constitution Brady’s union member-

ship had terminated by March 1, 1956.

® Brady v. Trans World Airlines, Inc., 244 F. Supp. 820 (D. Del.

1965) (Opinions 106a).

——_——w

8

The Holding of the Court of Appeals

In affirming, the Court of Appeals held:

A. A Railway Labor Act System Board of Adjust-

ment does not have jurisdiction over a union-security

discharge case, since this is primarily a dispute be-

tween the employee and his bargaining agent rather

than a dispute between the employee and his employer

(Opinions 14a) ;

B. Brady was entitled to obtain reinstatement in

this action and the relief of reinstatement is not limited

to the administrative procedures established by the

Agreement (Opinions 34a) ;

C. The District Court acted properly in ignoring

the decision of the System Board of Adjustment up-

holding Brady’s discharge, despite the absence of any

finding by the Court that the System Board had denied

Brady a fair hearing or otherwise acted improperly

(Opinions 20a) ; and

D. TWA automatically violated the Railway Labor

Act when, pursuant to a lawful collective bargaining

agreement and in good faith reliance on union cer-

tification, TWA complied with the decision of the

System Board and discharged Brady for failure to

maintain membership in good standing in the IAM

(Opinions 28a-32a).

Reasons for Granting the Writ

I.

This case raises an important question in the adminis-

tration of Title II of the Railway Labor Act—the extent

of the jurisdiction of an airline System Board of Adjust-

ment in union-security disputes, a question which will

affect the administration of every collective bargaining

agreement in the airline industry containing a union-secur-

ity clause. The decision below is in direct conflict with

the holdings of this Court and the holdings of other cir-

cuits involving union-security discharges of railroad em-

ployees under Title I of the Act.

In holding that the TWA-IAM System Board had no

jurisdiction over Brady’s claim for wrongful discharge, the

Court of Appeals has cast doubt on the jurisdiction of any

System Board to resolve any union-security dispute. Every

airline, every airline union and every airline employee has

a vital interest in having this doubt resolved.

Section 204 of the Act (45 U. S. C. §184) reonires

carriers and unions subject to the Act to provide in

their collective bargaining agreements for the creation

of adjustment boards to resolve disputes not disposed

of by grievance procedures. It is unquestioned that these

adjustment boards have jurisdiction over wrongfui dis-

‘charge claims. Indeed, the submission of such grievances

to an adjustment board “is not a matter of voluntary

agreement”; the Act compels the parties to arbitrate such

claims before adjustment boards. Walker v. Southern Ry.,

385 U. S. 196, 198 (1966).

The holding of the Court of Appeals below is contrary

to the decisions of this Court and those of other circuits

10

holding that the National Railroad Adjustment Board

established under Section 3 of the Act (45 U. S. C. §153)

has exclusive primary jurisdiction to determine the va-

lidity of union-security discharges of railroad employees.®

In 1954 this Court in a per curiam opinion affirmed the

holding of a three-judge court sitting in the Northern Dis-

trict of Illinois that a union-security discharge case “is a

dispute within the meaning of Section 3, First (1), cog-

nizable by the Board, and that the courts are without

jurisdiction.” Johns v. Baltimore & Ohio R.R., 118 F.

Supp. 317, 320 (N. D. Ill. 1954), aff’d. per curiam, 347 U.S.

964 (1954).

With one possible exception, there is uniform agreement

among the circuits that the National Railroad Adjustment

Board has exclusive primary jurisdiction in all union-

security discharge cases. See, e.g., Battle v. Brotherhood

of Ry. and 8.8. Clerks, 320 F. 2d 742 (D. C. Cir. 1963) ;

Alabaugh v. Baltimore & Ohio R.R., 222 F. 2d 861 (4th

Cir.), cert. denied, 350 U. S. 839 (1955); P*goit v. Detroit,

T. @ 1. R.R., 221 F. 2d 736 (6th Cir. 1955); United k.R.

Operating Crafts v. Pennsylvania R.R., 212 F. 2d 938 (7th

Cir. 1954); United R.R. Operating Crafts v. Northern Pa-

cific R.R., 208 F. 2d 135 (9th Cir. 1953), cert. denied, 347

U. S. 929 (1954); United R.R. Operating Crafts v. Wyer,

115 F. Supp. 359 (S. D. N. Y.), aff’d., 205 F. 2d 153 (2nd

Cir. 1953), cert. denied, 347 U. S. 929 (1954).

In Wyer Judge Conger dismissed an employee’s com-

plaint seeking to enjoin a railroad employer from honoring

*The jurisdiction of the National Railroad Adjustment Board

under Section 3 of the Act (45 U. S. C. §153) is comparable to

the jurisdiction of the TWA-IAM System Board of Adjustment

under Section 204 of the Act (45 U. S. C. §184).

11

a union-security discharge certification on the grounds that

the Board’s jurisdiction “is exclusive within the rule of the

Pitney,” Slocum" and Southern R. Co.” eases”. 115 F.

Supp. at 365.

The Second Circuit is also in accord in the ordinary

union-security discharge cases. In some cases, however,

where bias or hostile discrimination on the part of the

union was ~stablished—as is not the .use here—this Circuit

has permitted a review on the merits of an adjustment

board decision or has denied adjustment board jurisdic-

tion.” In Rychlik v. Pennsylvania R.R., 229 F. 2d i71 (2nd

1° Order of Ry. Conductors v. Pitney, 326 U. S. 561 (1946).

11 Slocum v. Delaware, L. & W. R.R., 339 U. 8. 239 (1950).

12 Order of Ry. Conductors v. Southern Ry., 339 U. 8. 255

(1950).

18 But even in such cases the decisions of the Second Circuit

appear to be in conflict. See Rychlik v. Pennsylvania R.R., 229

F, 2d 171 (2nd Cir. 1956), rev’d on other grounds, 352 U. S. 480

(1957) and Cunningham v. Erie R.R., 266 F. 2d 411 (2nd Cir.

1959). But cf. Thompson v. New York Cent. R.R., 361 F. 2d 137,

143 n. 7 (2nd Cir. 1966), where the Court said:

“There is no doubt that individual employees, such as the

plaintiffs here, whose interests vis-a-vis their employer are

hostile to those of their union, have standing to present griev-

ances to the Adjustment Board, irrespective of the union’s

position. The discussion to the contrary in Steele v. Louisville

& Nashville R.R., 1944, 323 U. S. 192, 205-206, 65 S. Ct. 226,

89 L. Ed. 173, is no longer valid. Sze Elgin, Joliet & Eastern

Ry. v. Burley, 1945, 325 U. S. 711, 731-738, 65 S. Ct. 1282,

89 L. Ed. 1886, aff'd on rehearing, 1946, 327 U. S. 661, 66

§. Ct. 721, 90 L. Ed. 928; Conley v. Gibson, 1957, 355 U. S.

41, 47, 78 S. Ct. 99, 2 L. Ed. 2d 80. See also Starke v. New

York G. & St. L. B.B., 7 Cir., 1950, 180 F. 2d 569, 573; Spires

v. Southern Ry., 4 Cir., 1953, 204 F. 2d 453; Colbert v.

Brotherhood of R.R. Trainmen, 9 Cir., 1953, 206 F. 2d 9, 12,

cert. denied, 1954, 346 U. S. 931, 74 S. Ct. 320; Gainey v.

a of Railway, etc., Clerks, 3 Cir., 1960, 275 F. 2d

12

Cir. 1956) the Second Circuit held that a Railroad System

Board of Adjustment established pursuant to Section 3,

Second of the Act, had jurisdiction over the union-security

dispute between Rychlik and the Brotherhood of Railroad

Trainmen. However, it further held that this jurisdiction

was subject to full review on the merits, because of the

bias which must be attributed to a body half of whose mem-

bers represented the Brotherhood of Railroad Trainmen.

Because of conflict between the Second and Sixth Cireuits*

and the importance’of these questions in the administration

of the Railway Labor Act, this Court granted certiorari.

351 U. S. 930 (1956). But, in its opinion reversing the

Second Circuit on other grounds this Court did not reach

the question of the extent of the review to be accorded the

proceedings before the System Board of Adjustment. 352

U.S. at 489 (1957).

In Cunningham v. Erie R.R., 266 F. 2d 411 (2nd Cir.

1959), it was held that an adjustment board did not have

surisdiction of a railroad employee’s claim that his union-

security discharge was the result of “hostile discrimina-

tion”. However, ev2n in this case the court was careful

to point out that

“_..in order to establish a breach by the union of its

duty to represent the employees fairly, as the bargain-

14 Pigott v. Detroit, T. & I. R.R., 221 F. 2d 736 (6th Cir. 1955).

%8JIn concurring Mr. Justice Frankfurter said “The determina-

tion of the System Board on the merits is not open to judicial re-

view, even on so-called legal questions. It is not for a court to say

that a complaint against the System Board must fail because the

System Board rightly held against the complainant. Right or

wrong, a court has no jurisdiction to review what the System Board

did, unless a complainant asserts arbitrariness and seeks co enforce

p limited protection established in the Steele case.” 352 U.S. at

499.

13

ing representative of the employees sanctioned by

statute, it is not enough to prove that the union was

wrong in demanding Cunningham’s dismissal. This

duty was no more than to forbear ‘hostile diserimina-

tion.’ The arbitrariness must be of the bad faith kind.

As Justice Stone suggested in Steele [v. Louisville &

Nashville R.R.], 323 U. S. at page 203, 65 S. Ct. 226,

it is not violative of federal law that the union not

satisfy all employees or that it improperly balance the

rights and obligations of the various groups it repre-

sents. Something akin to factual malice is necessary.

While the union may fail to strike a balance in the most

equitable fashion possible it at least must try.” 266

F. 2d at 417.

Here, however, the Court of Appeals has rejected the

qualification stated in Cunningham by denying the juris-

diction of the System Board of Adjustment although there

was no finding of hostile discrimination. The holding of

the Court of Appeals is, therefore, in conflict with the

decisions of six other circuits as well as the decisions of

this Court.

If the Court of Appeals is correct here, then every col-

lective bargaining agr2ement in the airline industry contain-

ing a union-security provision—a majority of such agree-

ments—-must be rewritten. No employee who claims to have

been wrongfully discharged under such a provision can re-

sort to a System Board for prompt determination of

his claim but will be required to resort to litigation.”

16 The burden on the employee, the union and the employer of

such a requirement is obvious from this case, involving a dispute

over a discharge in May 1956, and from Cunningham, in which the

Second Circuit finally decided in March 1966 a dispute over a dis-

charge in February 1955. Cunningham v. Erie R.R., 358 F, 2d

14

Moreover, the Court of Appeals in holding the System

Board without jurisdiction over a union-security discharge

has considered only the circumstance in which the carrier

has complied with the union’s discharge certification. It

has failed to consider the other side of the coin, the cir-

cumstance in which the carrier refuses to comply. What

forum has jurisdiction to determine that controversy?

Is such a controversy properly before a System Board |

because it is a dispute between the employer and the union?

If so, this would erable the employer to determine that

the System Board has jurisdiction in every case simply by

initialiy rejecting the vnion certification.

Or, does the System Board entirely lack jurisdiction

of such a dispute? If this is the case the union may claim

it is free to strike to enforce the union-security provisions

of the collective bargaining agreement since the dispute is

outsice the administrative procedures of the Act.

It is respectfully submitted that the confusion which must

result from this decision will inevitably disturb orderly

labor-management relations in the airline industry and

disrupt interstate comimerce thereby frustrating the

primary purpose of Section 2 of the Act (45 U.S. C. §151la)

to “avoid any interrupticn to commerce or the operation

of any carrier engaged therein”. No purpose of the Railway

Labor Act is served by denying System Boards jurisdiction

over union-security discharges. The important questions

which this decision has raised but not resolved should be

settled by this Court.

640 (2nd Cir. 1966). In contrast, System Board hearings under

Title II of the Act are held promptly and there is no backlog of

cases. Brady’s System Board hearing took place within two weeks

of the union discharge certification.

15

Ii.

This case alsu raises another important question of fed-

eral law which the Court of Appeals has decided in conflict

with applicable decisions of this Court. The Court of Ap-

peals has affirmed the jurisdiction of the District Court to

order Brady’s reinstatement. But federal substantive law

provides that a discharged airline employee may seek rein-

statement only by processing his grievance through a Sys-

tem Board of Adjustment. If he sues for unlawful dis-

charge the employee is limited to an award of money dam-

ages only.

In an unbroken line of cases commencing in 1941 and

continuing through its most recent decision of December

5, 1966, this Court has repeatedly held that an employee

subject to the Railway Laboz Act has two remedies when he

claims an unlawful discharge. He may seek reinstatement

and back pay by appealing his discharge to the applicable

Adjustment Board. Or, if lie decides to treat his contract

of employment as at an end, he may sue, where permitted

by State law, for money damages based on unlawful dis-

charge. Moore v. Illinois Central R.R., 312 U. S. 630 (1941) ;

Slocum v. Delaware, L. & W. R.R., 339 U. S. 239, 244

(1950); Transcontinental & Western Air, Inc. v. Koppal,

345 U. S. 653 (1953) ; Walker v. Southern Ry., 385 U. S. 196

(1966).*”

17In allowing such State court actions for money damages this

Court has held that the appropriate Adjustment Board continues

to have exclusive jurisdiction over the interpretation of collective

bargaining agreements under the Act stating:

“A eommon-law or statutory action for wrongful discharge dif-

fers from any remedy which the Board has power to provide,

and does not involve questions of future relations between

the railroad and its other employees. If a court in handling

eRe Ua ay Slab Or ro er eR PE 2

16

In Walker, this Court outlined the available remedies as

follows:

“ ...a discharged railroad employee aggrieved by

the discharge may either (1) pursue his remedy under

the administrative procedures established by an ap-

plicable collective bargaining agreement subject to the

Railway Labor Act, and his right of review before the

National Railway Adjustment Board, or (2) if he ac-

cepts his discharge as final, he may bring an action at

law in an appropriate State court for money damages

if the State courts recognize such a claim.” 385 U. S.

at 196.

Under each of these prior decisions of this Court, an ap-

peal to the System Board of Adjustment was the exclu-

sive means by which Brady could have obtained reinstate-

ment.

“A contrary rule which would permit an individual

employee to completely sidestep availabie grievance

procedures in favor of a lawsuit has little to commend

it. In addition to cutting across the interests already

mentioned, it would deprive employer and union of the

ability to establish a uniform and exclusive method for

such a case must consider some provision of a collective-

bargaining agreement, its interpretation would of course have

no binding effect on future interpretations by the Board.”

(1000) v. Delaware, L. & W. R.R. Co., 339 U. S. 239, 244

1950).

Whether, since ZAM v. Central Airlines, Inc., 372 U. S. 682

(1963) this Court will continue to permit such State court actions

for money damages to be maintained would appear an open ques-

tion. Mr. Justice Harlan, joined by Justices Stewart and White

in dissenting in Walker v. Southern Ry., 385 U. S. 196, 199 (1966),

suggests that since federal substantive law now controls the em-

ployee-employer relationship under the Act such State court ac-

tions should no longer be permitted.

ee

Ste a Re eS eels

17

orderly settlement of employee grievances. If a griev-

ance procedure cannot be made exclusive, it loses much

of its desirability as a method of settlement. A rule

~ ereating such a situation ‘would inevitably exert a dis-

ruptive influence upon both the negotiation and ad-

ministration of collective agreements.’ Teamsters

Local v. Lucas Flour Co., 369 U. S. 95, 103.” Republic

Steel Corp. v. Maddoz, 379 U. S. 650, 653 (1965).

The present decision is without judicial precedent. In no

case since Title II of the Railway Labor Act was adopted

in 1936 has an airline employee secured reinstatement by

ignoring the administrative procedures of his collective

bargaining agreement and instead suing for wrongful

discharge in the courts. This is not an appropriate case

to make an exception to the federal labor policy enunciated

by Congress in the Railway Labor Act and sustained in

an unbroken line of decisions of this Court.

iil.

This case raises a third important question of federal

law which has not been, but should: be, settled by this

Court—the question of whether an employer “automat-

ically” violates the Act when in good faith reliance on

union certification it complies with a System Board -deci-

sion upholding the discharge of an employee for failure

to maintain membership in good standing in his union,

if a court later determines that without tre employer’s

knowledge the union had improperly certified the em-

ployee’s discharge. :

There is no provision for “automatic” liability under

the Act. Nor does the legislative history of Section 2,

Eleventh, providing for union-security agreements, indi-

AIEEE PUNTA: RARE Ae LOT athe A eS ee

18

cate that Congress intended railroad and airline employers

to be “automatically” liable for union dereliction under the

Railway Labor Act, while absolving all other employers

from such liability under Section 8(a)(3) of the Labor

Management Relations Act.’* In fact, that legislative his-

tory makes it clear that the union-security provisions of

the two Acts are substantially the same. In its report when

Section 2, Eleventh was added to the Railway Labor Act in

1951, the Senate Committee stated that the terms of Sec-

tion 2, Eleventh “are substantially the same as those of

the Labor-Management Relations Act as they have been

administered... .” (1950 U. S. Code Cong. Serv. 4321).

Federal substantive law is here applicable. JAM v.

Central Airlines, Inc., 372 U. S. 682, 691 (1963). And this

Court has made it clear that the liability of the employer

for damages in cases such as this rests on an entirely

different basis from that of the union. Vaca v. Sipes,

386 U. S. 171 (1967). As stated by Mr. Justice Goldberg,

concurring in Humphrey v. Moore, 375 U. S. 335, 356

(1964), “the [employee’s] remedy in a suit based upon

a breach of the union’s duty of fair representation” may

be enforced against the employer only “under appropriate

1861 Stat. 140, as amended by 73 Stat. 525, 29 U. S. C. §158(a)

(3). It is only where the employer ‘iaas reasonable grounds for

believing that [union] membership was denied or terminated for

reasons other than the failure of the employee to tender the

periodic dues and the initiation fees uniformly required as a con-

dition of acquiring or retaining membership” that an employer is

liable for union dereliction in LMRA cases. NLRB v. Leece-

Neville Co., 330 F. 2d 242 (6th Cir.), cert. denied, 379 U. S. 819

(1964) ; Producers Transport, Inc. v. NLRB, 284 F. 2d 438, 443

(7th Cir. 1960); NZRB v. Pape Broadcasting Co., 217 F. 2d 197

(5th Cir. 1954); Krambo Food Stores, Inc., 114 N. L. R. B. 241,

244 (1955), aff'd sub nom. NLEB v. Allied Independent Union,

238 F. 2d 120 (7th Cir. 1956).

sit Rae ek es ES CETL CREE USAT AS

19

circumstances” such as where “the employer willfully par-

ticipated in the union’s breach of its duty of fair repre-

sentation”.

The decision below is in direct conflict with the legisla-

tive history of the Railway Labor Act and represents

a significant departure from the approach of this Court

in employee-union-employer litigation. A prompt and au-

thoritative answer is necessary in view of the fundamental

character of this question under the Act.

CONCLUSION

For the reasons stated, the writ should be granted.

Respectfully submitted,

Haroip L. Warner, JR.

Counsel for Petitioner

Cant S. Rewz

Ricwarr *. HARRELL

CHADBOURNE, Parks, WHiTEsSmE & WoLFY

New York, New York

Of Counsel

Dated: November 4, 1968

20

Certificate of Service

I, Harotp L. Warner, JR., hereby certify that:

1. Iam a member of the Bar of this Court.

2. I have this day served the attached Petition for a

Writ of Certiorari to the United States Court of Appeals

for the Third Circuit by depositing true copies thereof in

a Letter Box maintained and exclusively controlled by che

United States at 25 Broadway, New York, New York 10004,

with first class postage prepaid, addressed to the following

counsel of record in this action at the addresses designated

by them, as follows:

Francis L. White, Jr., Esq.

Duane, Morris & Heckscher

1617 Land Title Building

Philadelphia, Pennsylvania 19110

Bruce M. Stargatt, Esq.

Young, Conaway, Stargatt & Taylor

Bank of Delaware Building

Wilmington, Delaware 19891

Edward J. Hickey, Jr., Esq.

Mulholland, Hickey & Lyman

620 Tower Building

Washington, D. C. 20005

Harotp L. Warner, JR.

November 4, 1968

APPENDICES

ea

“ME Hanon i. Wrasse Je: , ‘perehy eertify that:

3 ees Bay i aa fi ine mber of the Bar of this Const,

2. t have this day gered thy: attached Petiian for a

ad -

a Wit ort ertiorarl vethe Dnited States |

ae ter the Thir Cireuit OY depositing trig wxpies thereaf in

eae — & etter Box maintained and exclusively controtted ny the

7 w York, New y eek eee

nidresacd to the followmg

. the ado resses designated

: os (ollo RG IGM IITE

;

Francs L. White, Jr, Hag.

Duane, Morris & Hoekseher . -

Sth Gy 2 es Rs 2 S| oe ee ove

1647 PA. LEC Sea:

Philadeipbia, Pennsvivania 19110

Brave M. Stargett, Esq. :

€ - Young, Cotiaws:, Stargatt & Tavs

Bank of Velavare Building

= t

a + . eer! aes 3) ae ee » gaat

ee retinington, Doa.uwwnre LOST

. 4 Ao Eealward J. Bickey, Jr, Esge i 0

S ee -Muthoiland, Hicker & Lyman

eer . 68. Tower aiding,

poe ashi Engton, Di 005

Haron) i, Wawarve. Da.

APPENDIX A

Judgment Sought to Be Reviewed

UNITED STATES COURT OF APPEALS

For tHe Turrp Circuir

No. 16,267

>

Vincent P. Brapy,

vs.

Trans Worip Arrunes, Inc., a corporation

of the State of Delaware,

and

Tue INTERNATIONAL ASSOCIATION OF Macainists,

an unincorporated association,

Tsans Wortp Arruines, Inc.,

Appellant.

(D. C. Civil Action No. 1884)

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE ——— DISTRICT OF DELAWARE

<j.

Present: ;

Hasttz, Chief Judge, and

McLaveuun and F'cxman, Circuit Judges.

A-2

JUDGMENT

This cause came on to be heard on the record from the

United States District Court for the —— District of Dela-

ware and was argued by counsel.

On consideration whereof, it is now here ordered and

adjudged by this Court that the judgment of the said

District Court, filed September 6, 1966, be, and the same

is hereby affirmed. Each of the parties to this appeal will

bear his own costs.

ATTEST:

Tuomas F. Quinn

Clerk

August 13, 1968

A-3

APPENDIX B

Statutes Involved

The following is the text of Sections 2, First, Fourth,

Fifth and Eleventh, 3, 201 and 204 of the Railway Labor

Act (49 U.S.C. §§151a, 152, First, Fourth, Fifth and

Eleventh, 152, 181 and 184) :

Sec. 2. [44 Stat. 577, as amended by 48 Stat. 1186, 62

Stat. 909, 64 Stat. 1238, 45 U.S.C. 151a, 152] The purposes

of the Act are: (1) To avoid any interruption to commerce

or to the operation of any carrier engaged therein; (2) to

forbid any limitation upon freedom of association among

employees or any denial, as « condition of employment or

otherwise, of the right of employees to join a labor organi-

zation; (3) to provide for the complete independence of

carriers and of employees in the matter of self-organization

to carry out the purposes of this Act; (4) to provide for the

prompt and orderly settlement of all disputes concerning

rates of pay, rules, or working conditions; (5) to provide

for the prompt and orderly settlement of all disputes grow-

ing out of grievances or out of the interpretations or ap-

plication of agreements covering rates of pay, rules, o1

working conditions.

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

agents, and employees to exert every reasonable effort to

make and maintain agreements concerning rates of pay,

rules, and working conditions, and to settle all disputes,

whether arising out of the application of such agreements

or otherwise, in order to avoid any interruption to com-

merce or to the operation of any carrier growing out of any

dispute between the carrier and the employees thereof.

A-4

Fourth. Employees shall have the right to organize and

bargain collectively through representatives of their own

choosing. The majority of any craft or class of employees

shall have the right to determine who shall be the represen-

tative of the craft or class for the purposes of this Act. No

carrier, its officers or agents, shall deny or in any way ques-

tion the right of its employees to join, organize, or assist

in organizing the labor organization of their choice, and it

shall be unlawful for any carrier to intertere in any way

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

of the carrier in maintaining or assisting or contributing

to any labor organization, labor representative, or other

agency of collective bargaining, or in performing any work

therefor, or to influence or coerce employees in an effort to

induce them to join or remain or not to join or remain

members of any labor organization, or to deduct from the

wages of employees any dues, fees, assessments, or other

contributions payable to labor organizations, or to collect

or to assist in the collection of any such dues, fees, assess-

ments, or other contributions: Provided, That nothing in

this Act shall be construed to prchibit a carrier from per-

mitting an employee, individually, or local representatives

of employees from conferring with management during

working hours without loss of time, or to prohibit a carrier

from furnishing free transportation to its employees while

engaged in the business of a labor organization.

Fifth. No carrier, its officers, or agents shall require any

person seeking employment to sign any contract or agree-

ment promising to join or not to join a labor organization;

and if any such contract has been enforced prior to the

effective date of this Act, then such carrier shall notify

A-5

the employees by an appropriate order that such contract

has been discarded and is no longer binding on them in any

way.

* * e * e

Eleventh. [45 U. 8. C. § 152 as added by Act of January

10, 1951, 64 Stat. 1238] Notwithstanding any other provi-

sions of this Act, or of any other statute or law of the

United States, or Territory thereof, or of any State, any

carrier or carriers as defined in this Act and a labor or-

ganization or labor organizations duly designated and au-

thorized to represent employees in accordance with the

requirements of this Act shall be permitted—

*

(a) to make agreements, requiring, as a condition of con-

tinued employment, that within sixty days following the

beginning of such employment, or the effective date of such

agreements, whichever is the later, all employees shall be-

come members of the labor organization representing their

craft or class: Provided, That no such agreement shall

require such condition of employment with respect to em-

ployees to whom membership is not available upon the same

terms and conditions as are generally applicable to any

other member or with respect to employees to whom mem-

bership was denied or terminated for any reason other than

the failure of the employee to tender the periodic dues,

initiation fees, and assessments (not including fines and

penalties) uniformly required as a condition of acquiring

or retaining membership.

(b) to make agreements providing for the deduction by

such carrier or carriers from the wages of its or their em-

ployees in a craft or class 4nd payment to the labor organi-

zation representing the craft or class of such employees, of

A-6

any periodic dues, initiation fees, and assessments (not in-

cluding fines and penalties) uniformly required as a condi-

tion of acquiring or retaining membership: Provided, That

no such agreement shail be effective with respect to any

individual employee until he shall have furnished the em-

ployer with a written assignment to the labor organiza-

tion of such membership dues, initiation fees, and assess-

ments, which shall be revocable in writing after the ex-

piration of one year or upon the termination date of the ap-

plicable collective agreement, whichever occurs sooner.

(c) The requirement of membership in a labor organi-

zation in an agreement made pursuant to subparagraph (a)

shall be satisfied, as to both a present or future employee

in engine, train, yard, or hostling service, that is, an em-

ployee engaged in any of the services or capacities covered

in section 3, First (h) of this Act defining the jurisdictional

scope of the First Division of the National Railroad Adjust-

ment Board, if said employee shall hold or acquire mem-

bership in any one of the labor organizations, national in

scope, organized in accordance with this Act and admitting

to membership employees of a cratt or class in any of said

services ; and no agreement made pursuant to subparagraph

(b) shall provide for deductions from his wages for pe-

riodic dues, initiation fees, or assessments payable to any

labor organization other than that in which he holds mem-

bership: Provided, however, That as to an employee in any

of said services on a particular carrier at the effective date

of any such agreement on a carrier, who is not a member

of any one of the labor organizations, national in scope,

organized in accordance with this Act and admitting to

membership employees of a craft or class in any of said

services, such employee, as a condition of continuing his

A-7

employment, may be required to become a member of the

organization representing the craft in which he is employed

on the effective date of the first agreement applicable to

him: Provided, further, That nothing herein or in any

such agreement or agreements shall prevent an employee

from changing membership from one organization to an-

other organization admitting to membership employees of

a craft or class in any of said services.

(d) Any provisions in paragraphs Fourth and Fifth of

section 2 of this Act in conflict herewith are to the extent

of such conflict amended.

Sec. 3. [44 Stat. 578, as amended by 48 Stat. 1189, 80

Stat. 208, 45 U.S.C. 153] First. There is hereby estab-

lished a Board, to be known as the “National Railroad Ad-

justment Board”, the members of which shall be selected

within thirty days after approval of this Act, and it is

hereby provided—

(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 or-

ganized in accordance with the provisions of section 2 of

this Act.

(b) The carriers, acting each through its board of di-

rectors or its receiver or receivers, trustee or trustees, or

through an officer or officers designated for that purpose by

such board, ‘rustee or trustees, or receiver or receivers,

shall 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 divi-

A-8

sion on which each such representative shall serve, but no

carrier or system of carriers shall have more than one rep-

resentative on any division of the Board.

(c) The national labor organizations as defined in para-

graph (a) of this section, acting each through the chief

executive or other medium designated by the organization

or association thereof, shall prescribe the rules under which

the labor members of the Adjustment Board shall be se-

lected and shall select such members and designate the divi-

sion on which each member shall serve; but no labor or-

ganization shal’ ave more than one representative on any

division of the Board.

(d) In case of a permanent or temporary 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 o¢

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

the passage of this Act, in case of any original appointment

to office of a member of the Adjustment Board, or in a

case of a vacancy in any such office within thirty days after

such vacancy occurs, the Mediation Board shall thereupon

directly make the appointment and shall select an indi-

vidual associated in interest with the carriers or the group

of labor organizations of employees, whichever he is to

represent.

(f) In the event a dispute arises as to the right of any

national labor organization to participate as per paragraph

(c) of this section in the selection and designation of the

labor members of the Adjustment Board, the Secretary of

hee

Labor sbail investigate the claim of such labor organiza-

tion to participate, and if such claim in the judgment of

the Secretary of Labor has merit, the Secretary shall notify

the Mediation Board accordingly, and within ten days »fter

receipt of such advice the Mediation Board shall request

those national labor organizations duly qualified as per

paragraph (c) of this section to participate in the selection

and designation of the labor members of the Adjustment

Board to select a representative. Such representative, to-

gether 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

thirty days after the appointment 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 2 hereof and is otherwise properly

qualified to participate in the selection of the labor mem-

bers 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 be com-

pensated by the party or parties he is to represent. Each

third or neutral party selected under the provisions of (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 actu-

ally incurred for subsistence, or per diem allowance in lieu

thereof, subject to the provisions of law applicable thereto,

while serving as such third or neutral party.

(h) The said Adjustment Board shall be composed of

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 foilows:

A-10

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,

conductors, trainmen, and yard-service employees. This

division shall consist of ten members, five of whom shall be

selected and designated by the earriers and five of whom

shall be selected and desigr.ated by the national labor or-

ganizations of the employees.

Second division: To have jurisdiction over disputes in-

volving machinists, boilermakers, ‘ !acksmiths, sheet-metal

workers, electrical workers, car men, the helpers and ap-

prentices of ail the foregoing, coach cleaners, powerhouse

employees, and railroad-shop laborers. This division shall

consist of ten members, five of whom shall be selected by

the carriers and five by the national labor organizations of

the employees.

Third division: To have jurisdiction over disputes in-

volving station, tower, and telegraph employees, train dis-

patchers, maintenance-of-way men, clerical employees,

freight handlers, express, station, and store employees, sig-

nalmen, sleeping-car conductors, sleeping-car porters, and

maids and dining car employees. This division shall con-

sist of ten members, five of whom shall be selected by the

carriers and five by the rational labor organizations of em-

ployees.

Fourth division: To have jurisdiction over disputes in-

volving employees of carriers directly or indirectly en-

gaged in transportation of passengers or property by

water, and all other employees of carriers over which juris-

diction is not given to the first, second, and third divisions.

A-11

This division shall consist of six members, three of whom

shall be selected by the carriers and three by the national

labor organizations of the employees.

(i) The disputes between an employee or group of em-

ployees and a carrier or carriers growing out of grievances

or out of the interpretation or application of agreements

concerning rates of pay, rules, or working conditions, in-

cluding cases pending and unadjusted on the date of ap-

proval of this Act, shall be handled in the usual manner

up to and including the chief operating officer of the carrier

designated to handle such disputes; but, failing to reach an

adjustment in this manner, the disputes may be referred

by petition of the parties or by either party to the appro-

priate division of the Adjustment Board with a full state-

ment of the facts and all supporting data bearing upon the

disputes.

(j) Parties may be heard either in person, by 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 empioyees

and the carrier or carriers involved in any disputes sub-

mitted to them.

(k) Any division of the Adjustment Board shall have

authority to empower two or more of its members to con-

duct hearings and make findings upon disputes, when prop-

erly submitted, at any place designated by the division:

Provided, however, That final awards as to any such dis-

pute must be made by the entire division as hereinafter

provided. >

(1) Upon failure of any division te agree upon an award

because of a deadlock or inability to secure a majority vote

A-12

of the division members, as provided in paragraph (n) of

this section, then such division shal! 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 select

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 certify 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 member 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 Act for the appointment of arbitrators

and shall fix and pay the compensation of such referees.

(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 shal) 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 in

the light of the dispute.

(n) A majority vote of all members of the division of

the Adjustment Board shall be competent to make an award

with respect to any dispute submitted to it.

(o) 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

A-13

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. '™ the event any division detei nines that an award

favorable to the petitioner should not be made in any dis-

pute referred to it, the division shall make an order to the

petitioner stating such determination.

(p) Ifa 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

located the principal operating office of the carrier, or

through which the carrier operates, 4 petition setting forth

briefly the causes for which he claims 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 suits, except that on

the trial of such suit the findings and order of the division

of the Adjustment Board shall be conclusive on the parties,

and except that the petitioner shall not be liable for costs

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-

ney’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 appropriate to enforce or set aside

the order of the decision of the Adjustment Board: Pro-

vided, however, That such order may not be set aside ex-

A-14

cept for failure of the division to comply with the require-

ments of this chapter, for failure of the order to conform,

or confine itself, to matters within the scope of the divi-

sion’s jurisdiction, or for fraud or corruption by a member

of the division making the order.

(q) If any employee or group of employees, or any car-

rier, is aggrieved by the failure of any division of the

Adjustment 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 failure of the division to include certain terms in such

award, then such employee or group of employees or car-

rier may 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 forthwith transmitted by the clerk of the court to

the Adjustment Board. The Adjustment Board shall file in

the court the record of the proceedings cn 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 proceeding to the division for such

further action as it may direct. On such review, the find-

ings 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 remanded to the division, for

failure of the division to comply with the requirements of

this chapter, for failure of the order to conform, or con-

fine itself, to matters within the scope 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 1291 and 1254

of Title 28.

iia naER te pica

A-15

(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.

(s) 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 disposed of.

(t) Whenever practicable, the several divisions or sub-

divisions of the Adjustment Board shall be supplied with

suitable quarters in any 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

proceedings. The compensation of such employees shall be

paid by the Mediation Board.

(v) The Adjustment Board shall meet within forty days

after the approval of this Act and adopt such rules as

it deems necessary to control proceedings before the re-

spective divisions and not in conflict with the provisions

of this section. Immediately following the meeting of the

entire Board and the adoption of such rules, the respec-

tive divisions shall meet and organize by the selection of

a chairman, a vice chairman, and a secretary. Thereafter

each division shall annually designate one of its members

to act as chairman and ‘one of its members to act as

vice chairman: Provided, however, That the chairmanship

and vice chairmanship of any division shall alternate as

A-16

between the groups, so that both the chairmanship and

vice chairmanship shall be held alternately by a represen-

tative 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 included 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 Mediation Board shall state in detail all cases heard,

all actions taken, the names, salaries, and duties of all

agencies, employees, and officers receiving compensation

from the United States under the authority of this Act,

and an account of all moneys appropriated by Congress

pursuant to the authority conferred by this Act and dis-

bursed by such agencies, employees, and officers.

(x) Any division of the Adjustment Board shall have

authority, in its discretion, to establish regional adjust-

ment 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 desig-

nated in keeping with rules devised for this purpose by

the carrier members 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 appointed, have the same authority

to conduct hearings, make findings upon disputes, and

adopt the same procedure as the division of the Adjust-

A-17

ment Board appointing it, and its decisions shall be en-

forceable to the same extent and under the same processes.

A neutral person, as referee, shall be appointed for service

in connection with any such regional adjustment board in

the same circumstances and manner as provided in para-

graph (1) hereof, with respect to a division of the Ad-

justment Board.

Second. Nothing in this section shall be construed to

prevent any individual carrier, system, or group of car

riers and any class or classes of its or their employees,

all acting through their representatives, selected in ac-

cordance with the provisions of this Act, from mutually

agreeing to the establishment of system, group, or regional

boards of adjustment 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 under the jurisdiction of the Adjust-

ment 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 Adjustment 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 represen-

tative, 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 may be considered by such board

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shall be defined in the agreement 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 representative fails to

agree upon the establishment of such a board as provided

herein, or to exercise its rights to designate 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 request for such

designation the Mediation Board shall promptly make

such designation and shall select an individual associated

in interest with the carrier or representative he is to rep-

resent, who, with the member appointed by the carrier

or representative requesting the establishment of the spe-

cial board, shall constitute the board. Each member of

the board shall be compensated by the party he is to rep-

resent. The members of the board so designated shall

determine all matters not previously agreed upon by the

carrier and the representative of the employees with re-

spect to the establishment and jurisdiction of the board.

If they are unable to agree such matters shall be deter-

mined by a neutral member of the board selected or ap-

pointed and compensated in the same manner as is here-

inafter provided with respect to situations where the mem-

bers of the board are unable to agree upon an award.

Such neutral member shall cease to be a member of the

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

A-19

or group of disputes they shall by mutual agreement select

a neutral person to be a member of the board for the con-

sideration and disposition of such dispute or group of dis-

putes. In the event the members of the board designated

by the parties are unable, within ten 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 request the Mediation Board

shall promptly make such appointment. The neutral person

so selected or appointed shall be compensated and reim-

bursed for expenses by the Mediation Board. Any two

members of the board shall be competent 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 therewith 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 pro-

visions that apply to proceedings for enforcement of com-

pliance with awards of the Adjustment Board.

Sec. 201. [Added by 49 Stat. 1189, 45 U. §. C. 1817 All

of the provisions of title I of this Act, except the provi-

sions of section 3 thereof, are extended to and shall cover

every common carrier by air engaged in interstate or for-

eign commerce, and every carrier by air transporting mail

for or under contract with the United States Government,

and every air pilot or other person who performs any

work as an employee or subordinate official of such carrier

or carriers, subject to its or their continuing authority to

supervise and direct the manner of rendition of his service.

A-20

Sec. 204. [Added by 49 Stat. 1189, 45 U. S. C. 184] The

disputes between an employee or group of employees and

a carrier or carriers by air growing out of grievances, or

out of the interpretation or application of agreements con-

cerning rates of pay, rules, or working conditions, includ-

ing cases pending and unadjusted on the date of approval

of this Act before the National Labor Relations Board,

shall be handled in the usual manner up to and including

the chief operating officer of the carrier designated to

handle such disputes; but, failing to reach an adjustment

in this manner, the disputes may be referred by petition

of the parties ur by either party to an appropriate adjust-

ment board, as hereinafter provided, with a full statement

of the facts and supporting data bearing upon the disputes.

It shall be the duty of every carrier and of its employees,

acting through their representatives, selected in accordance

with the provisions of this title, to establish a board of

adjustment of jurisdiction not exceeding the jurisdiction

which may be lawfully exercised by system, group, or

regional boards of adjustment, under the authority of sec-

tion 3, Title I, of this Act.

Such boards of adjustment may be established by agree-

ment between employees and carriers either on any indi-

vidual carrier, or system, or group of carriers by air and

any class or classes of its or their employees; or pending

the establishment of a permanent National Board of Ad-

justment as hereinafter provided. Nothing in this Act

shall prevent said carriers by air, or any class or classes

of their employees, both acting through their representa-

tives selected in accordance with provisions of this title,

from mutually agreeing to the establishment of a National

Board of Adjustment of temporary duration and of sim-

ilarly limited jurisdiction.