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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1969
- **Citation:** 393 U.S. 1048

## Text

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

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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

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ae ter the Thir Cireuit OY depositing trig wxpies thereaf in

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7 w York, New y eek eee

nidresacd to the followmg

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: os (ollo RG IGM IITE

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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

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a + . eer! aes 3) ae ee » gaat
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. 4 Ao Eealward J. Bickey, Jr, Esge i 0
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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

(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

A-18

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385604_0325%3A2. Public record. Not legal advice.